BOWEN AND JONES v. PYNE AND HAMMOND, 1 Ohio Ch. 602

Wrtght, J. The position is correct, that the writ must show every material thing essential to the plaintiff’s right to recover, and amongst other things aver that the debt remains unpaid, by the bail. If the writ before us does not substantially allege this, the omission is fatal to the plaintiff’s right. It is first averred that execution yet remains to be made upon the judgment. If the principal or bail have in any way paid the judgment, then execution does not remain to he made of it.

It is secondly averred, that the plaintiff has not been satisfied, the judgment, nor Jras the debtor’s body been rendered in execution. Now that the principal or bail have in any way paid or otherwise satisfied the judgment, is wholly inconsistent with this averment, and does not, therefore, raise a legal presumption in favor of the defendant. Upon the whole, we think though these averments might have been more technical, they do in substance set forth all the law requires tó confer on the plaintiff the right to recover. Demurrer is overruled. Judgment for the plaintiff.