The Court do not incline- to hear upon the second point. The statute provides, “ that every writ or process, originally returnable to the Supreme Court, shall be signed by a Judge or Clerk of the same.” It is true there are certain writs issuing originally from this Court, which the Clerk is not empowered to sign; but the only distinction between those which he may or one of the Judges must sign, is, where the granting of the writ is of discretion or ©f right. The scire facias is a writ which issues mi*332nisterially, and the plaintiff hath a right to demand it, and the Clerk may sign it. But writs of audita querela, error, &c. the issuing of which depends on the sound discretion of the Judge, he cannot sign.
W. C. Harrington, for the State. Santuel Miller and John Fay, for defendants.The first exception is, that the writ should have been issued as a summons, and not as an attachment. The Court do not consider the case of bail entered upon a recognisance as a casus omissus in the statute, but do consider that the 31st section of the judiciary act covers all writs of scire facias. It is said the statute is here treating of civil process. This is correct. But the recognisance taken for the appearance of a delinquent to answer to an indictment, is a civil contract between the government, represented by the Treasurer, and the recognisors. The whole course of practice, since the promulgation of the statute, has beén, where the occasion required, to issue writs op attachment against the bail on such recognisances.
Judgment, that demurrer is insufficient.
*333MOTION for a writ of procedendo,
Harrington, State Attorney, at this terna moved the Court for a writ of procedendo, directed to Chittenden County Court, commanding the Judges to proceed,' hear, try and determine a certain cause between the State and one Ross, who had been arrested to answer in that Court for a larceny in stealing a buifalpe skin, upon an information filed ex officio by the State Attorney.
The facts upon which the motion was grounded, appeared to be,
That Ross had been arrested and arraigned upon the information, and pleaded not guilty, and put himself on the country for trial. A Jury was impanelled; but upon the trial the Judges of the County Court, discovering the chattel alleged to be stolen to be of small value, they considered the information to have been improperly brought before their Court, but the offender ought to have been tried by a single magistrate. The County Judges, without consulting the State Attorney, peremptorily dismissed the Jury, and ordered the prisoner to go without day, who immediately fled into the British dominions, and hath not returned since.
In support of his motion, Mr. Attorney read part of the 8th section of the judiciary act, “ That the Supreme Court of Judicature shall have power to issue *334Writs of mandamus warranted by the principles and usages of law to any Courts appointed or persons holding office.”
Motion not granted.