Frost vs. Reynolds, 2 Dana 94

Judge Underwood delivered the Opinion of the Court. The demurrer to the scire facias should have been sustained. The scire facias has been drawn so unskilfully, that we are constrained to pronounce it destitute of substance as well as form.

A scire facias against bail should set out the pendency of the action ; the issuing of the process; the order recpiiring bail; the nature of the undertaking of the bail, in the words of the recognisance or the substance of them that the recognisance or bail piece was entered into before the sheriff or other proper officer, while the writ or process wais in full force, and in his hands; the rendition of the judgment, the issuing of execution thereon, directed to tiie proper county, and the return by the proper officer, “of no property found.” These things being done with certainty, according to the record, the foundation is exhibited upon which the liability of the bail rests.

The scire facias should then proceed to suggest or charge, that the defendant in the action against whom the judgment was rendered, had removed his effects out of the commonwealth after the undertaking of the bail, and conclude by commanding the sheriff to summon the bail, to appear, to make known or to shew cause, if any he can, why judgment of execution shall not be awarded against him. The foregoing is required to make out a dear right to recover against the bail, under the'act of the 29th of January, 1829. The scire facias must present such a right, and is defectiv.e if it does not.

Judgment reversed, with costs, and cause remanded, with directions to enter judgment on the demurrer, in favor of Frost.