What is necessary to be done to create, or rather to fix the liability upon this bail bond, depends upon the positive provisions of the statute under which it was given. Whatever the statute requires, whether we may think it useful or sensible, or the reverse, must be done before a right of action can exist upon it. By the defendant in error it was insisted that no right of action exists until a ca. sa. has been issued upon the judgment. That is the law for cases in the Circuit Court, but it is not so in cases before justices of the peace. The 92nd section of the 59th chapter B. S. is the one which prescribes what shall be done to fix the liability of special bail before justices of the peace. But unfortunately there is a misprint in that section, which has been followed both in Purple’s Statutes and Scates’ Compilation. We find, upon examination of the enrolled law in the Secretary’s office, that the section referred to reads as follows: “ In all cases where the defendant shall give special bail under the provisions of this chapter, and shall not be surrendered on or before the return day of the scire facias upon the judgment,” etc. In all three of the printed works referred to, the words “fieri facias” are substituted for scire facias. Now, although we may think that the writ specified by the printer is a much more appropriate one for the occasion than the one prescribed by the legislature, we are bound by the latter, and must require the issue of a writ of scire facias before the bail can be fixed. That was not done here, and consequently the action could not be maintained.
The judgment must be affirmed.
Judgment affirmed.