whereupon, Judge Roaxe pronounced the Court’s opinion, as follows.
Although, after the return of “ no effects” on the jfieri facias issued against the obligor in the case in question, it was not incumbent on the appellee to sue out a Capias ad satisfaciendum, in order to entitle himself to this action; yet, having taken out such Execution, which “ tends to satisfy the debt,” and as, (for aught appearing in the record,) Ilaydon the obligor is still in custo> *450dy, under the ca. sa., or may have paid the debt; we ar~ of ,opinion, that the appellee was premature in bringing this action. On this ground (withont attending to other objections arising in the case,) the judgment is to be reversed, and entered for the appellant.