M'MACKIN v. M'FARLAND, special bail of M'FARLAND, 1 Miles 319

The opinion of the Court was delivered by Pettit, President. In practice the provision of the act of the 28th of March 1835 has been confined to the case of bail to the sheriff. In Pepper v. Doores [ante p. 60), the grounds upon which the court grant relief in suits on bonds given to the sheriff, were fully explained. It had been however repeatedly made a question, what was the third term, where the process in the original action had been made returnable to a monthly return day, that is, the second or third return day of -a term.

Though the court undoubtedly had full power, under the statute of 5 JInne, to regulate the practice, yet it was deemed proper by the legislature to insert in the act of 1835, a directory clause. The rule of court of the 7th of November 1835, accordingly, settled the question in regard to the term at which bail to the sheriff would be no longer entitled to relief; and of course would be .conclusively fixed. In regard to special bail, however, no difficulty existed which it was expedient to remove.

Though the liability of such bail is in strictness incurred on the return by the sheriff of “ non est inventus” to the ca. sa. in the original action, yet ex gratia the defendant in a scire facias on a recognizance of special bail has till the quarto die post of the return day to surrender the principal. M’Clurg v. Bowers, 9 Serg. & Rawle 24. If the quarto die post be permitted to pass without a surrender, the special bail is fixed.

Now whether the scire facias be made returnable to a quarterly or to a monthly return clay, the grace extended to the bail ⅛ precisely the same, and he ought not therefore to be said to be fixed in the one case sooner than in the other. As he lias the same notice and the same time allowed to him to relieve himself from the responsibility already in rigid law resting upon him, it is unimportant to him which of the return days may be designated for the return of the writ.

The period at which bail to the sheriff will be fixed, if fixed at all, is, in practice, matter of computation at the commencement of the suit, and it was to regulate this that the proviso in question was enacted. The period at which special bail becomes fixed, depends upon process, in regard to the time of issuing which the plaintiff has a wide discretion. The extension of the proviso to the case of special bail, would lead to such serious difficulties, from the very inception of the original action, that the- construction could not have been contemplated by the legislature. Rule discharged.