This is a suit against the sheriff and his bail, upon his recognizance. The statute makes it indispensable that the creditor, before bringing scire facias, should recover judgment against the sheriff.. And it further provides, that when such judgment is rendered by default, the sureties may make the same defense, which might have been made in the original action. This ought not perhaps to be extended beyond defenses upon the merits. But to this extent there can be no doubt, the judgment in this case against the sheriff being by default, is defensible by the sureties and by Holmes, who had no notice in fact.
The suit against the sheriff is for an escape. But the facts in the case show that no escape was in fact suffered. The debtor Peck was committed on mesne process, and gave a jail bond, and no demand whatever was made upon the sheriff, or any one, for the bond, and the statute is express, that no suit for an escape shall be sustained, until after such demand and a refusal to assign it. The statute contains no exceptions, and we cannot make them, certainly not, unless in the most obvious eases of necessity. And in the present case the sheriff remained for a long time in the state, and it is presumable the demand would have been made, if the creditor had supposed it would have served him any purpose to have the bond put in suit.
The bond seems to us to be a valid bond on mesne process. And *551the fact that it was found in the possession of the family of a former jailor, in another State, affords no necessary presumption, that a demand would not have been available. It does not appear how long the bond had been out of the state, or that the sheriff on demand would not probably have produced it, and assigned it.
Non est inventus on plaintiff’s execution, the 29th day of August, A. D. 1843. Suit against sheriff brought the 7th day of August, 1847, and Holmes left the state just before this, giving four years to make demand of the bond, and for any thing we know, it would have been assigned at any moment. Judgmept affirmed.