
    BOWEN AND JONES v. PYNE AND HAMMOND.
    Special bail — scire facias — averment—satisfaction—pleading.
    A scire facias before a recognizance for special bail must set forth every material thing essential to the plaintiff's right to recover, and therefore must show the debt remains unpaid by the debtor or bail.
    But an averment that execution yk remains to be made of the judgment, and that the plaintiff has not been satisfied, are either of them substantially such an averment.
    Scire facias on a recognizance of- special bail. The writ states the recovery of judgment, and avers that execution thereof remains to be made. It then sets out the recognizance, conditioned that if the defendant should be condemned in the action, he should pay the condemnation of the court, or be rendered, or render himself to the custody of the sheriff, or that in case of failure, the recognizors would pay for him, &c., and avers the suing out a ca. sa. the return, not found, and assigns for breach that the defendant has not satisfied the judgment, nor has his body been rendered to the sheriff in execution thereon.
    
    The defendants demur generally, which is joined.
    
      Hammond, for the demurrant,
    contends that the writ must show every material matter essential to the plaintiff’s right, and show that the debt remains unpaid. The English precedents followed in this writ are insufficient, because our statute form of recognizance contains a stipulation not known to the English, viz,, that in case of the defendant’s failure, the bail will pay for him; and from analogy to the English forms under their recognizance, the scire facias here must negative the fact of such payment: (29 O. L. 61; Lilly's Ent. 380, 521.)
    
      *T. Jones and Van Matre, contra,
    cite 4 O. 398; 2 Tidd's Pr. 1150; Wils. Prac. 236; Amer. Prac. 410.
   WRIGHT, J.

The position is correct, that the writ must show every material thing essential to the plaintiff’s right to recover, and amongst other things aver that the debt remains unpaid, by the bail. If the writ before us does not substantially allege this, the omission is fatal to the plaintiff’s right. It is first averred that execution yet remains to be made upon the judgment. If the principal or bail have in any way paid the judgment, then execution does not remain to be made of it. It is secondly averred, that the defendant has not satisfied the judgment, nor has the debtor’s body been rendered in execution. Now that the principal or bail have in any way paid or otherwise satisfied the judgment, is wholly inconsistent with this averment, and does not, therefore, raise a legal presumption in favor of the defendant.

Upon the whole, we think though these averments might have been more technical, they do in substance set forth all the law requires to confer on the plaintiff the right to recover. Demurrer is overruled. Judgment for the plaintiff.  