
    Lee and Fitzhugh v. Chilton.
    Decided Feb. 7th 1817.
    9. Scire Facias — Sheriff’s Return — Sufficiency.—On a Writ of Scire facias against Bail, a return by the Sheriff that the defendant is no inhabitant of his Bailiwick, and is not found within the same, is not a sufficient return of nihil: but it should be stated, also, that he has nothing in the bailiwick, by which he could be summoned.
    2, Same — Same—Amendment.*—If two Writs of Scire facias be successively issued; the returns on which are both defective; and the defendant, after pleading specially, obtain leave to withdraw his plea, as having been improvidently pleaded; the Court ought not thereupon to permit the Sheriff to amend both his returns, but only that on the first Writ; quashing the second Writ, and remanding the cause to the Rules for farther proceedings.
    A writ of scire facias was issued from the Clerk’s office of Spottslyvania County, directed to the Sheriff thereof, on the *17th of February 1813, in behalf of John Chilton against M’Carty Fitz-hugh and Henry Lee, jr. as special Bail for Henry Bee, sen’r. The Sheriff’s return was, “The within-named M’Carty Fitz-hugh and Henry Lee, jr. are not inhabitants of my bailiwick, and are not found within the same.” An alias writ of scire facias was issued, and directed in like manner, on the 17th of April; on which writ the Sheriff’s return was, ‘‘no inhabitants of my bailiwick, and not found.” At Rules in the Clerk’s office in June, a common order was entered against the defendants, which in July was confirmed. At August Term, the defendants, appearing by Counsel, pleaded “payment, and no such Record;” and thereupon the Office Judgment was set aside. At November Term, “it appearing to the Court that the Counsel for the defendants had improvidently pleaded in this cause,” leave was given him to withdraw the said pleas, which he accordingly did ; whereupon, “the plaintiff moved the Court to permit the Sheriff to amend his return of the Scire facias’s by stating that the defendant had nothing in his bailiwick, by which they could be summoned; which the Court accordingly ordered; whereupon the Sheriff amended his said returns; and it appearing to the Court that the defendants, at the time of issuing the first Scire facias, were, and ever since had remained, out of the Commonwealth of Virginia,” Judgment was immediately entered against them.
    To this Judgment a Writ of Supersedeas was awarded by a Judge of the General Court; the error alleged in the Petition being that the Court had entered Judgment against the special Bail on the return of two Scire facias’s nihil, contrary to the Acts of Assembly directing the mode of serving Writs of Scire facias, 1 R. C. ch. 231, p. 379; and ch. 67, § 30, p. 89. The Judgment being affirmed by the Superior Court of Law, the defendants obtained a writ of Supersedeas from a Judge of this Court.
    *Wickham for the plaintiffs in error. It may be questioned; but I conceive this case is within the provisions of the Act concerning the service of Writs of Scire facias, 1 R. C. ch. 67, § 30, p. 89; and that the Sheriff’s return is still defective. The only part of the return, which is proper at the common law, is that introduced by the amendment. Under the Acts of Assembly, actual service on the defendant or his Agent is necessary to authorize a return of the Scire facias executed; and to constitute a good return of nihil, where the defendant does not reside in the county, it should be stated that he is absent from the Common-, wealth and has no known Attorney within the same. This should have appeared by the Return itself and not by parol testimony. Where a negative as well as affirmative proposition is necessary, as the foundation of the proceedings, both must be stated. '
    But, if the Court had the right to hear testimony, the grounds they went upon were insufficient; for it should have appeared that the defendants had no known Attorney within the Commonwealth.
    The Pleas being withdrawn, not on the ground of no defence, but that the defendants had improvidently pleaded, the cause should have been sent to the rules, farther time allowed to plead, and, in case of failure, Judgment entered by nil dicit. The Court therefore erred in entering Judgment immediately.
    Parker contra.
    A party who withdraws his plea, stands precisely in the same situation as one who has appeared and not pleaded. In both cases, Judgment may be entered by nil dicit. When the plea is withdrawn, there is no necessity of another Rule to plead. If there were, the same proceedings might eternally be repeated. If the defendants intended to object to the return of the Scire facias, they should have pleaded in abatement, or moved to quash it.
    Notwithstanding the Acts of Assembly concerning the service of Writs of Scire facias, Judgment may be entered against special bail upon two such Writs returned nihil,  The Act which says that “no Judgment shall be rendered on the return of two nihils, unless the defendant reside in the County *or Corporation, or unless he be absent from the Commonwealth, and have no known Attorney within the same,” applies only to Writs of Scire facias “for renewal of Judgments.” That of January 1798 does not say that the mode of service therein pointed out shall be the only one, but that the service so directed shall be sufficient. The return, however, that the defendant is not found, is no inhabitant of the Sheriff’s Bailiwick, and has nothing therein, by which he could be summoned, is a sufficient return of nihil under that Act, as well as at common law.
    The leave, granted the Sheriff to amend his return, makes no difference in the case. According to Baird v. Rice, 1 Call. 24, 25, and Bullitt’s Executors v. Winstons, 1 Munf. 269, his omission to make the proper return did not affect the justice of the case, or alter the rights of the parties, which must be considered, as if the return as amended had been made in the first instance.
    Wickham in reply.
    The return on the first Scire facias should have been nihil. The return actually made did not warrant the issuing of the second Scire facias. The amendment of both returns at once was improper. If admissible, it would make the second Scire facias good by matter ex post facto. The course should have been to amend the return on the first Writ, and then issue another. Baird v. Rice was a case in Equity, in which the Court proceeded on the ground that Equity will consider that as done, which ought to be done. Bullitt’s ex’ors. v. Winston is not like the present case. We should have had a day to answer the amended return ; and also farther time to produce the body of our Principal. Upon the amendment, the cause should have been sent to the Rules for a new common order, or rather for a new Scire facias to be issued.
    
      
       Sheriff’s Return — Amendment.—See foot-note to Bullitt v. Winstons, 1 Munf. 269; foot-note to Walker v. Com., 18 Gratt. 14; foot-note to Wardsworth v. Miller, 4 Gratt. 99; foot-note to Smith v. Triplett, 4 Leigh 690; monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300. The principal case is cited with approval in Goolsby v. St. John, 25 Gratt. 160.
    
    
      
       1 R. C. ch. 66, § 31, p. 79.
    
    
      
       1 R. C. ch. 67, § 30, p. 89.
    
    
      
       Ibid, ch. 231, p. 379.
    
   February 7th, 1817. JUDGE ROANE pronounced the Court’s opinion.

The Court is of opinion that the Judgment of the County Court is erroneous in this; that, at the time the defendants had leave to withdraw their pleas, as having been improvidently pleaded, they had the right to surrender their principal; two writs of Scire facias not having been then returned nihil against them ; that the permission given to the Sheriff to amend his returns could not, by relation to the time, when those returns were made, deprive them of the benefit of two several writs returned nihil; for, until such writs were severally issued, and so returned, with a proper interval between each, they had a right to make such surrender. The Judgment of the Superior Court of Law, affirming that of the County Court, is therefore erroneous, and reversed with costs; and this Court proceeding, &o. the Judgment of the County Court is also reversed, with Costs, as far back as the order permitting the Sheriff to amend his return; which Order is also reversed so far as it permits an amendment of the return on the second writ of scire facias; and the said last mentioned Writ, with the return thereon, is quashed, and the cause remanded to the rules to be farther proceeded in.  