forthwith transmit it to the clerk of the court for appearance before which it is taken; or if it be not for appearance before a court, to the clerk of the county or corporation in which it is taken; and it shall remain filed in the clerk's office.". (Acts 1847-8, p. 128, § 14; 1866-7, p. 943, § 7.)

§ 8. When a person, under a recognizance in a criminal case, either as party or witness, fails to perform the condition thereof, if it be to appear before a court, his default shall be recorded therein. The process on every recognizance shall be issued from the court before which the appearance was to be, or, if it be not for such appearance, from a court in which it is taken, or (when taken out of court) in whose office the recognizance remains filed; and in a proceeding in one court on a recognizance entered in another, a copy thereof shall be evidence in like manner as the original would have been, if

5 In taking a recognizance, the justice in putting the name of his county in the caption uses a contraction; but the contraction is so used that it is obviously intended for a county, and there is no difficulty in ascertaining the county intended. This is not error. Gedney v. Com., 14 Gratt. 318.

Though it is not stated in the body of the recognizance of what county the justice was, yet, as it states that he was “a justice of the said county," that refers to the county named in the caption, and is sufficient. Ibid.

In a scire facias upon a recognizance, a substantive and direct averment that the recognizance was transmitted by the justice to the clerk of the county court is not necessary. The recital of the recognizance, which purports to be taken by a justice in the county, and the implied averment of the transmission of the recognizance, contained in the prout patet per recordum, is sufficient.

Ibid.

6 A recognizance had been entered into by the defendant to keep the peace generally, and particularly towards J. S. The scire facias issued on this recognizance merely set forth that the defendant had failed to perform the condition of the said recognizance. This scire facias is defective, in not stating how, or in what, he had broken his recognizance, and it might be quashed. Randolph. Governor, &c. v. Brown et al., 2 Va. Cas. 351.

7 In Gedney v. Com., the clerk, in suing out the writ of scire facias, by mistake, pursued the form of the writ which goes out on a recognizance taken in a county court for the appearance of a party before a circuit court, instead of the form used when the recognizance is taken by a justice out of court, and transmitted to the clerk of the court where the party is to appear. See Robinson's Forms 260-261. "In the former case," said Daniel, J. “a

entered in the court wherein the proceeding is. 600, § 4; p. 606, § 23; Acts 1847-8, p. 133, § § 7; p. 146, § 25; 1866–7, p. 943, § 8.)

(1 R. C. p.

32; p. 139,

§ 9. A surety in a recognizance may, after default, pay into the court from which process has issued, or may issue thereon, the amount for which he is bound, with such costs as the court may direct, and be thereupon discharged. (Acts 1847-8, p. 132, § 33; 1866–7, p. 943, § 9.)

8

§ 10. When, in an action or scire facias on a recognizance, the penalty is adjudged to be forfeited, the court may, on application of a defendant, and in a county or corporation court with the consent of the attorney prosecuting, remit the penalty or any part of it, and render judgment on such terms and conditions as it deems reasonable." (Acts 1847–8, p. 132, § 34; 1866–7, p. 943, § 10.)

copy of the recognizance may be used as evidence against the party, (Code, ch. 211, § 8,) and the verification by a copy is formal and proper. In the latter case, the original recognizance is the only proper evidence, and the prout patet, instead of being (as it is), 'as by a copy,' &c., should have been as already indicated. The mistake, however, does not furnish ground for reversing the judgment. If the plaintiff regarded it as one by which he might be prejudiced, he might have had it corrected by adopting the course pointed out in the section referred to. On a demurrer, the defect cannot be regarded by the court." 14 Gratt. 325-6.

8 One scire facias may issue against several cognizors in one recognizance; but it must treat the recognizance as several, and the judgment must be several. Caldwell v. Com., 14 Gratt. 698; Gedney v. Com., supra.

9 If, after the default of the principal recognizer has been recorded, the sureties, on a rule against them, can shew to the satisfaction of the court, that the principal was rendered unable to appear at the proper court, by reason of wounds and sickness, the court, in the exercise of a sound discretion, may spare the recognizance, and decline awarding the scire facias, especially if the prisoner then be in custody to answer the indictment. Com. v. Craig et al., 6 Rand. 731.

In shewing cause against the rule, affidavits are admissible without requiring the presence of the witnesses in court, if the court be satisfied that they have been fairly taken. Ibid.

The recognizance is, that the principal shall appear before the circuit court at a certain time to answer a charge of felony. At the time he was

§ 11. No action or judgment on a recognizance shall be defeated or arrested by reason of any defect in the form of the recognizance, if it appear to have been taken by a court or officer authorized to take it, and be substantially sufficient.10. (Acts 1847-8, p. 132, § 325; 1866–7, p. 943, § 11.)

§ 12. A surety in a recognizance may at any time take his principal and surrender him to the court or judge before whom the recognizance was taken; or if it was taken by a court which was not in session, or by a justice, to a judge or justice of such court, or a justice of the county or corporation in which it was taken: whereupon said surety shall be discharged from liability for any act of the principal subsequent thereto. (Acts 1847-8, p. 132, § 36, 37, 38; 1866-7, p, 943, § 12.

§ 13. If the surrender be before a judge or justice, he shall give the surety a certificate thereof, and the accused be let to bail anew for the residue of the term, or to appear as before required, and on failure so to recognize, shall be committed to jail as in other cases of failure to give bail. If the surrender be to the court, it shall take such order as it deems proper. (Acts 1847-8, p. 132, § 37, 38; 1866–7, p. 943, § 13.

required to appear he was in the penitentiary, having been tried, convicted and sentenced for another felony. Afterwards, and before a judgment on the scire facias against his bail, his time under his sentence expires, and he is sent back to the jail of the county in which he was to appear for trial before the circuit court; and he is tried and acquitted. The prisoner's confinement in the penitentiary having rendered it impossible for him to appear at the court at the time prescribed by the recognizance, it constitutes a good defence for the bail to the scire facias. Caldweli v. Com., 14 Gratt. 698.

In such case the defence may be made by plea; but it may also be made by petition or motion; and the facts being agreed by counsel for the bail and the attorney for the Commonwealth, the question of law may be decided by the court. Ibid.

10 See Hamlett et als. v. Com., 3 Gratt. 82; Saunders' adm'r v. Com., Id. 214, cited in ante, chap. 4, note 9, to § 8.

As to fines on jurors, witnesses and others.

§ 14. The name of any person summoned by an officer, and failing to attend as a juror upon an inquest out of court, shall be returned by such officer to the next term of the court from which the process issued requiring such jury; or if there be no such process, to the next term of the court of such officer's county or corporation. Such court shall fine such person, unless he have a reasonable excuse for his failure, eight dollars. (1 R. C. p. 612, § 50; 1866–7, p. 944, § 14.)

§ 15. No court shall impose a fine upon a juror, witness,"1 or other person, for disobedience of its process or any contempt, unless he either be present in court at the time, or shall have been served with a rule of the court, returnable to a certain time, requiring him to show cause why the fine should not be imposed, and shall have failed to appear and (1 R. C. p. 612, § 51; 1866-7, p. 14, § 15.)

show cause.

11 An attachment for a contempt, in not attending the court as a witness, ought not to issue until a rule has been served upon the party to shew cause why it should not. Morris v. Creel, 1 Va. Cas. 333.

See post, chap. 17, § 24, for the cases in which the courts and the judges and justices thereof may issue attachments for contempts, and punish them summarily; and § 27, of same chapter, for prosecutions against persons who, by threats or force, obstruct the administration of justice.

§ 1. There shall be a grand jury at four of the terms, in each year, of the county and corporation courts, to be designated by the judge of such courts. And it shall be lawful for the said courts, at any term thereof, or the judges of said courts in vacation before such term, whenever they shall deem it proper to do so, to order a grand jury to be summoned to consider any offences against the laws. (1 R. C. p. 264, ch. 75, § 1; Acts 1847-8, p. 140, ch. 19, § 1; 1852-3, ch. 27, § 1; 1859-60, ch. 38, p. 138, § 2; 1866-7, p. 857, § 1, p. 925, § 1; 1870, ch. 397, § 1, p. 551.)

§ 2. It shall be the duty of the judge of the county or corporation court of each county and city of the State, in the month of January in each year, or as soon thereafter as practicable, to select from the qualified voters of each township of such county, or ward of such city, not less than twenty