Boyle v. Robinson , 7 H. & J. 200 ( 1826 )

Earle, J.

delivered the opinion of the Court. This is the case of a scire facias against special bail, which was quashed, on motion, by the court below, ior insufficiency, with costs to the defendant. An affidavit, filed in support of the motion, states, that a mistake had been committed by the clerk in taking bail to the action — in taking Eve Robinson bail for Coulter and Fisher, whereas she was bail for Fisher only; and this, it is presumed, induced the court to set aside the scire facias, which appears to have been issued to make the bail responsible for Coulter.

The writ recites the recognizance of bail, the proceedings to judgment against the principal, and all other facts and circumstances material to the case; and the return thereof being in all respects regular, the court cannot conceive how it eould be quashed for insufficiency. That process cannot want sufficiency which conforms to the record, which is the foundation of it. If Eve Robinson appears on the record to have been the bail of Coulter, the writ is not to be deemed defective and erroneous, for stating her to be so.

It appears to the court, that the party’s remedy has been mistaken in this case. If relievable on motion, it should have been made for rectifying the original entry in which the alleged mistake in taking the bail occurred; but whether it could have availed her or not, it is not for us at this time to decide. The subject is not regularly before us, and it has not therefore particularly engaged our attention. It is, however, certain, that as long as the record remains unaltered, the scire facias must be m conformity with it, and for being so, it cannot be pronounced insufficient.

JUDGMENT REVERSED.

R. Johnson moved for a writ of procedendo, or special mandate, to the court below, directing them to proceed in the case.

PROCEDENDO AWARDED..