Garland v. Ellis

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.