Opinion
Fall Session, 1879.
THIS was an action of debt on a recognizance of bail in an action of trespass q. c. f. against John Breerly, and recovery of judgment therein by the plaintiffs for fifty dollars damages and costs, and which had not been paid, tried before Houston and Wales, Judges, Comegys, C. J., absent. The record of the same was offered and read in evidence by the counsel for the plaintiffs, from which it appeared that at the return term of the original writ therein the defendant appeared, and the said Edward W. Houston became special bail for him in the action. It also showed the recovery of the judgment in it as alleged, and that a writ of fieri facias had been issued upon it and returned nulla bona and non sunt inventi. The pleas were nul tiel record, no ca. sa. issued and returned non est inventus before the commencement of this action, and release and issues thereon. The counsel for the plaintiffs upon the production of the evidence above mentioned rested his case.
Cullen, for the defendant, submitted a motion for a nonsuit on the ground of the fact and the complete defense alleged in the second plea, which was denied by the plaintiffs, but was proved by the record produced in evidence on their behalf. No writ o ca. sa. had been issued on the judgment, as appeared from if with a return of non est inventus thereon as to the defendant in it, to fix the liability of the bail which the law imperatively requires. 2 Tidd. 1098; 3 Johns. 514; 16 Johns. 117; Rev. Code, sec. 11, p. 637.
Layton, for the plaintiffs: Our statute in relation to the writ had dispensed with the necessity of a ca. sa. in such a case. 1 Tidd. 304, 306.
The Court granted the motion for a nonsuit.