
    BURR v. MOODY.
    Bail for stay of execution is not liable to suit until execution has issued against the judgment debtor.
    Error to the Court of Common Pleas.
    Brown, for the plaintiff in error.
    if. Curtis, .contra.
   By the Court.

The suit below was upon a recognizance acknowledged before a justice of the peace for stay of execution on a judgment. It is objected to the judgment rendered against the bail; 1. That it appears the recognizance was drawn to be signed by Burr and another, and was inoperative because it was only signed by Burr. 2. That it does not appear that any execution was issued against the defendant in the original judgment before this suit was commenced.

The issuing of an execution against the judgment debtor after the stay is out, is expressly required by the statute, before suit is brought against the bail. 29 O. L. 182. The second objection is, therefore, fatal; and the judgment must be reversed. The other objection need not be noticed.  