A scire facias was issued in favour of Street against Brison, by a justice of the peace. The object of the writ was to have an award of execution against the defendant, as the bail of one Cooper for the stay of execution. The justice gave judgment for the plaintiff; and the defendant appealed to the Circuit Court.
A motion was made in the Circuit Court by the defendant, to set aside the scire facias issued by the justice, on the ground that it did not aver that an execution had issued against Cooper; but the motion was overruled. The defendant,'afterwards, failed to prosecute his appeal; and judgment was rendered against him for the same amount as that which had been rendered against him by the justice, with ten per centum thereon, and costs.
The only error assigned and relied on is, that the scire *360facias issued by th Jflfitice does not aver that an execution had issued against rare judgment-debtor. But we think that such an averment is not necessary. It is true, that there must be a return to an execution against the principal, that sufficient goods cannot be found to satisfy the execution, before a scire facias can issue against the bail. Rev. Stat. 1838, p. 374. But it does not follow, that the scire facias must show that an execution had be'en so issued and returned.
J. Hyman, for the plaintiff. G. Holland, for the defendant.The scire facias against special bail on their recognizance, which is a. similar case to that before us, does not aver that a capias ad satisfaciendum against the principal had been returned non est inventus, though such a return is necessary to be made before the bail can be charged. Tidd’s Prac. Forms.
If, in such cases, the proper execution has not been issued, or the return to it necessary to charge the bail has not been made, those matters are a good defence, and may be pleaded in bar to the scire facias. 2 Saund. 72 s.—3 Chitt. Pl. 995.
Per Curiam.The judgment is affirmed with costs.