Nichols v. Woodruff, 6 Blackf. 180

BLackeokd, J. This was a seire facias, issued in favour of Woodruff against Nichols, on a recognizance entered into by the latter as special bail for one Nay in an action of assumpsit. The scire facias states the arrest of Nay, and that Nichols entered into the following recognizance indorsed on the capias ad respondendum, viz., “ I, Drusus Nichols, acknowledge myself special bail for the within named George Nay in the within named suit. Given under my hand and seal this 25th of September, 1839.

Drusus Nichols, (seal.)” It further states that the plaintiff recovered a judgment in the original suit for the sum of, &c.; that a fieri facias issued thereon and was returned no property found; that a capias ad satisfaciendum subsequently issued, and was returned non est inventus; that the judgment remained unpaid; and that Nichols had not paid the judgment, nor surrendered Nay according to the recognizance. There are six pleas, Special demurrers to the first four, and replications in denial of the others.

The demurrers were sustained; the issues on the last two pleas tried; and judgment rendered for the plaintiff. This judgment is erroneous. The recognizance is in the form prescribed by the statute, and is to be construed as if its terms were particularly set out. It must be considered that one of the terms of the recognizance was, that if the defendant in the original suit should render himself in discharge of the judgment, the recognizance was to be void. *The scire facias omits to aver that such render had not been made, and is consequently insufficient on demurrer. Per Ouriam.—The judgment is reversed.

Cause remanded, &c.