
    Garland v. Ellis.
    March, 1831.
    (Absent Coalter, J.)
    Special Bail — Sci. Fa. — Demurrer.—A demurrer to a sci. fa. upon a recognizance of special bail, is regular practice.
    Same — One Sci. Fa. against Three Bail — Effect.—In a joint action of debt against three obligors, three persons severally undertake, by several recognizances, as special bail for each of the three defendants; after judgment, creditor sues out one sci. fa. against the three bail, upon their several recognizances; Held, they cannot be joined in one sci. fa. and that the sci. fa. is naught, and ought to be quashed.
    In debt, in the county court of Amherst, by Filis against Henry Ballinger, Richard Bal-linger and Thomas Richeson, Garland, Muse and John Richeson, by several recognizances, severally undertook as special bail for the defendants ; vizi Garland for Henry Ballinger, Muse for Richard ^Ballinger, and John Richeson for Thomas Riche-son. And Filis having recovered judgment in that action, afterwards sued out one scire facias against the three special bail of the three defendants respectively, reciting their several recognizances, and requiring them to shew cause if any they could, why the plaintiff “should not have execution of their debt against them, according to the form and effect of their recognizances severally entered into as aforesaid &c.” They all pleaded nul tiel record ; but Garland pleaded some special pleas in bar, and demurred generally to the scire facias. The county court sustained the demurrer and quashed the scire facias. Ellis appealed to the circuit court, which reversed the judgment, overruled the demurrer, and remanded the cause to the county court to be proceeded in. And then Garland appealed to this court.
    Stanard for the appellant,
    maintained that the judgment of the county court was clearly right. Undertakings of the three special bail were perfectly several and distinct, each having entered into a several recognizance for one of the three defendants ; and the plaintiff could no more join them in one scire facias, than he could join three distinct and several obligors in three separate bonds in one action of debt.
    Johnson, contra,
    endeavoured to shew, that it was irregular to demur to a scire facias upon a recognizance of bail. It was not necessary to the defence of the bail. The scire facias shewed the whole foundation of the claim ; and if it did not shew sufficient ground to charge the bail, no judgment could be given against him.
    
      
       The principal case was distinguished in Gedney v. Com., 14 Gratt. 329, 330.
    
   GREEN, J.

There is no doubt a scire facias may be demurred to. Tidd’s prac. 213; Wood v. Commonwealth, 4 Rand. 329. And the demurrer in this case was well founded. A scire facias against special bail is founded upon the recognizance, as the gist of the action, not upon the original judgment against the principal. That and the proceedings *upon it are only inducement to the action, and to the proof that the recognizance has been forfeited. In this case, the three several persons entering into recognizances, severally, as the bail for the three defendants respectively, were under no joint obligation or responsibility to the plaintiff, and he could, in no possible event, be entitled to an award of execution against them jointly, on their several recognizances. The objection to a joint scire facias against them, is as fatal as it would be to a joint action against several upon several and distinct contracts. The demurrer was rightly sustained, and the scire facias quashed, by the county court.

Judgment 'Of the circuit court reversed, and that of the county court affirmed.  