
    *Michael Daintry against Francis Johnston, surety of Sharpe Delany.
    
      Scire facias on a recognizance on a writ of error, may issue before the term in which the record is remitted to the Supreme Court, on the affirmance of the judgment in the Court of Errors and Appeals.
    Mr. M. Levy proposed a point of practice for the decision of the court. This cause had been removed to the High Court of Errors and Appeals, and the judgment had been there affirmed. The doubt at the bar, was whether a scire facias could issue on the recognizance, entered into before the taking out of the writ of error, previous to the term in the Supreme Court, to which the record was remitted.
    He observed, that under the 17th section of the act of 13th April 1791, (3 Dali. Laws, 98,) the bail became immediately liable to satisfy the condemnation money together with damages, on the principal failing to prosecute his writ of error with effect, and therefore no further delay should be allowed. Debt may be brought on the recognizance, and it may happen, that the sureties may be leaving the state.
    Mr. Lewis for the defendant,
    suggested, that the section alluded to, directed, that “after the judgment should be affirmed “ or reversed, the record and proceedings should be remitted into “ the Supreme Court to the end that such further proceedings “ might be had thereon, as well for execution as otherwise, as “to 'justice should appertain.” The record and proceedings were carried into another court, by the writ of error, and there continued until the remittitur. It will not be said, that an execution could issue on the affirmance of the judgment, until the term in the Supreme Court, when the record was sent back; because there would be nothing whereon to found it. Why should a scire facias or action of debt, be then accelerated ? All process is supposed to issue by order of the court, and the further proceedings on the • affirmance of the judgment are put under the direction of the Supreme Court.
    The court (Smith, dissenting) declared their opinion, that the scire facias might issue before the record was remitted to the term in the Supreme Court; cases may arise, where an application to the court for remedy, on the affirmance of a judgment, may be necessary. But the purchasing of writs of scire facias or capias on the recognizance, is the mere act of the party, and cannot be considered as the award of the court.
   Smith, J.

thought that the record not being before the court, *no act could be done until the term arrived in the Supreme *149] Court, to which the record was remitted ; and that the words “as otherwise,” in the clause, comprehended the present case. He felt himself constrained by the words of the law.  