Opinion
April Term 1818.
A prosecution bond is so far a record, that a scire facias may be founded upon it; but it does not in all respects partake of the qualities of a record, for its execution can only be put to issue by non est factum, not nul tiel record. It ought, therefore, to be described with particularity in the scire facias, and produced if required. (See Broyles v. Blair, 7 Y., 279; Barkley v. State, Meigs, 83; Maxwell v. Salts, 4 Cold., 233.)
Whitesides was defendant to an action commenced against him by James Tabb, and after his death continued by his administrator, Searcy was surety for prosecution of the suit. The cause was determined in favor of Whitesides.; and the scire facias was against him as surety, in which it is stated that he, Searcy, became surety for the prosecution of the action. Searcy demurred.
The bond for prosecution is so far a record, that a sci. fa. maybe founded upon it; but it does not in all respects partake of the qualities of a record. For to it the defendant may plead non est factum, and therefore it ought to be described with particularity in the sci. fa., and should be produced if required.
There can not in general be over of a record; for by reference the defendant may search for and find it. Nul tiel record pleaded in this case would not put in issue the execution of the bond.
Here the judgment on the sci. fa. is for nearly $200, and it is stated that the suretyship was for $100 only; for this reason also the judgment is erroneous. Judgment reversed.