There were many points made by the plaintiff in error in this case, only one of which will be noticed. It is contended that the capias ad satisfaciendum, issued against Middleton, the defendant in the original suit, is a void process, and that consequently Brown, the plaintiff in error, who was his bail, is not liable. By reference to the record, it will appear that a capias ad satisfaciendum issued on the 1st day of November, 1827, returnable to the next term of the Court, to be holden on the first Monday in January of the same year. There can be no doubt that a mistake was made by the clerk in making the writ returnable at a term already passed. It must have been designed for January in the next year. In this however, he was still mistaken, as the next term of the Court after the issuance of the process, would have been in December, and not in January. If a writ is made returnable ata wrong term of the Court, or at no term, argument would hardy be required to prove that it was absolutely void. It is true that after a party has made his appearance in Court to an original writ, he is not permitted to take advantage of its irregularity, because the office of the writ has been performed by such appearance in Court, The record in the case before us, states that “the parties appeared by their attorney, and the defendant failing to plead or demur to the plaintiffs’ scire facias, &c.” The phraseology of the clerk’s entry, leaves it doubtful whether both plaintiffs and defendant appeared, or the plaintiffs only by their attorney. But the most reasonable conclusion from the terms used, is that the plaintiffs only-appeared by their attorney, and that the defendant was in default. If however it was clear that the defendant appeared to the scire facias, and permitted judgment by default to go against him, it would not have precluded him *335from taking advantage of the defective ca. sa. that been sued out against Middleton, his principal. Such pearance would have been only a waiver of the defective service of the writ of scire facias. After his appearance in Court, be would not be allowed to say that th estire fa-cias had not been served on him in the mode required by law. The return of the ca. sa. not found, is the foundation and pivot, on which the liability of bail turns. If the ca. sa. has not been regularly sued out, although returned not found, ihe bail is not bound to notice it. A majority of the Court are therefore of opinion, that the judgment must be reversed.
Judges Saffcld, Crenshaw and White, dissenting.Judgment reversed.