#### Alexander Gray, et. al. v. George Hoover.

The act of 1777, (Rev. ch. 115 § 69J makes the Sheriff special bait, when ho neglects to return a bail bond, and to charge him as such, no notice to him of his liability is necdáSary.

Scire Facias against the defendant, the Sheriff of Randolph, seeking to charge him as special hail of one Joshita Cox, who lie had arrested, and discharged without taking bail. The set. fa. set forth the judgment in favor of the plaintiffs against Cox, the fact that it remained unsatisfied, and that the Sheriff had not returned a bail bond with the writ, but it did not set forth the ■issuing of a m. ■sa. against Cox, and a return of non est inventus.

Píea, 1st. JVul tiel record. 2d, That at the return term of the writ against Cox, no exception for want of bail was taken by the plaintiffs, and no notice given to the defendant to justify, or that he was held to be responsible as bail.

The plaintiffs took issue on the first plea, and demurred generally to the second. Norwood Judge, at Randolph, on the last circuit sustained the demurrer, and the issue in fact being found for the plaintiffs, judgment ivas entered according to the sci.fa. and the defendant appealed.

Winston and Mendenhall for the defendant*

in this court moved in arrest of judgment, because the sci. fa. did not aver the issuing of a ca. sa•. and a return of non es.t inventus.

Nash for the plaintiffs.

Bastee, Judge.

After stating the case as above proceeded : — The defendant contends that the plaintiffs demurrer to his special plea should have been overruled ; because, he says,the sixty ninth section of the act of 1777, {Rev. ch. 115,) subjects the Sheriff as special bail only on certain conditions, one of which is that whenhe shall arrest any person on a bailable writ, and shall fail to take a bail bond, and return the same with the writ, then he *476shall be held, and deemed special bail on the plaintiffs giving him notice that be looked to him, and considered him special bail, otherwise he is not special bail.

Bail can take adv.an.tage °( aco sa. only-by a special plea.

We cannot give such a construction to that section as the defendant contends for. The. section contemplates making the Sheriff special bail in two cases : first when he has not taken any bail bond: secondly, when ho has taken insufficient bail, and exception shall be taken thereto the same terra the writ is returnable, and notice given that term to the Sheriff to justify, and he does not justify, then he becomes special bail. When the Sheriff fails to take any bail bond,he is special bail himself, with out any other notice than that which he receives from the law. There is si proviso which enables the defendant to put in now bail, before the time given him to plead has expired, and then the Sheriff is discharged,and also author-ising the Sheriff to surrender in discharge of himself,— When the Sheriff has not taken any bail bond, he is not entitled to any notice from the plaintiff in order to sub* ject him as bail; this point has been decided by this court after an objection similar to the one now made, (Governor v Jones, 2 Hawks, 363.) We think the demurrer was properly sustained by the court.

Secondly: the defendant in this court, moves in arrest of judgment, because the Scire Facias does not recite that a ca. sa. had issued on the judgment, and had been returned non est inventus. He contends that as the act of Assembly expressly requires that a ca. sa. shall issue, and be returned before a scire facias shall go against the bail, it is necessary that it should be recited in the scire facias.

In .England the scire facias only recites the recogió-zance of bail, and the judgment against the principal, and that he has not paid, it or .rendered himself — it does not recite the ca. sa. or the return of non est inven-tus, (Archb. Appdx. 253, 254.) If the ca. sa. has not issued, or has not been returned non est inventus, the defendant must take advantage of the omission by a special plea, (Lutw. 1825, 1 Archb. Prac. B. K. 319, Philpot v Manuel, 16 Eng. C L R 244,) he cannot take the objection on the plea of mil tiel record for that refers only to *477tli© record of the judgment, (Handy v Richardson, 2 Hay. 138.) In England the practice is to issue the ca. sa. and lodge it in the Sheriffs office, where it must be the four last days exclusively before the return. The Sheriff then returns non est inventus as a matter of course, without making any attempt to arrest the defendant, the ca. sa. being intended merely as a notice to the bail of the plaintiffs intentions to proceed against them, (Hunt v Cox, 3 Bur. 1360. 1 Archb. P. 320.) The act of 1777", which requires that a ca. sa. shall issue against the principal, and be returned non esl inventus before a scire facias shall issue against the bail, is to be considered only as re-enacting the rule and practice in the English courts, with this exception, that the Sheriff must make a diligent effort to execute the ca. sa. It has been determined in this State, that it is not necessary to recite the ca. sa. against the principal m a scire facias against the bail, (Langdon v Troy, 2 Hay. 15. Arrenton v Jordan, 4 Hawks 98.) We are of the opinion that the motion in arrest of judgment should be overruled, and that the judgment of the Superior Court should be affirmed.

Langdonv. Troy (l May. 15) and dan, (4 Hawks 98,) approved.

Per Curiam — Judgment aeitrmed-