
    Solomon Wright vs. Thomas Brownell.
    Bennington
    
      February, 1829.
    That the want of prout patet per recordum, of the judgment, in a scire facias against bail, is bad on a special demurrer.
    That the scire facias need not aver the nature of the liability of the bail, but, to aver it incorrectly is bad on demurrer.
    This was a scire facias against the defendant as bail of one Caleb Eldred, at the suit of the plaintiff. It recited the history of the original suit, the defendant’s becoming bail, and the final judgment in the Supreme Court, the regular issuing of the execution, and a return of non est inventus thereon : but omitted the averment “ as appears of record.” The allegation of the defendant’s becoming bail was in these words: “ and the said Caleb being so arrested and in the custody of the said Hiclcs, (the officer) as aforesaid, Thomas Brownell, of, &c., became bail and surety for the said Caleb, that he should appear in the said suit of the plaintiff, so prosecuted by him as aforesaid, and respond the judgment which should therein be obtained, if any, by endorsing his name on the back of said writ, according to the form, force and effect of the statute in such case made and provided.” The defendant demurred specially to the scire facias, and one cause assigned was the want of an averment, that said Caleb had avoided the plaintiff’s execution ; that he had not responded the judgment, &c. Another special cause assigned was, the want of an averment, with regard to the judgment and other proceedings, that the same appear oj record.
    
    
      Mr. Church, in support of the demurrer. — It is contended that the plaintiff’s declaration is insufficient. 1st. The writ of scire facias against bail is founded on a record, which shews the admitting to bail and the judgment against the debtor, or original defendant. — 1 Bac. Abr. 117, Tit. sci.fa. also 103. (A). — Hence the record becomes a traversable fact, and the process and judgment ought to be stated and referred to in the declaration, as a record, that the courtmay know it to be such. — 1 Chit. PI. 356. ■ — 3 Salk. Rep. 321, Guillam vs. Hardisty, — 11 East, 516, Phillipson et al. vs. Mangles.
    
    2. Therefore, the plaintiff’, in his declaration, should have set forth bis process and judgment with a “prout patet per recordum,” or have made a. proferí of his record; and that is necessary not only to enable the plaintifF to prove hiscase,jbutforthe defendant to P^ea<^ 5 and for the inspection of the record by the Court, to enable them to render judgment thereon. But it might be otherwise if the record was only inducement. — 11 East, 564, PowdicJc vs. Lyon. — 2 Sir. Rep. 1165, Gray vs. Jefferson.
    
    3.The plaintiff in his declaration ought to have alleged that Caleb Eldred avoided his execution, and that he had not responded the judgment, or paid the sums therein contained, or any part thereof; and that the defendant had not satisfied the same ; for, on one or the other of these facts, the plaintiff’s right of recovery depends ; and these facts may be answered or traversed by the defendant. 6 Mass. Rep. 494, Ruggles et al. vs. Ives.
    
    It is a settled rule, that the plaintiff must declare on the facts, constituting the gist of his action, according to their legal effect, and not on the evidence of those facts. 1 Chit. PI. 216,236.— 1 Con. Rep. 404, Bacon vs. Page.
    
    
      Bennett and Smith, contra. — 1. The gist of this action is the non-surrendry of the principal.
    2. The judgment is but matter of inducement, as in the case of an escape. 2 Salic. 565.
    3. Prout patet per recordum, is not necessary, where the judgment is but inducement. 1 Chitty, 356. — 2 Colee, 303.
    4. This declaration is according to the Vermont precedents.
    5. The application, in this case, is for an execution on a judgment in the same Court.
    
    6. The want of a negative complained of, is supplied by the averment, that the judgment is in full force, and in no part satisfied.
    
    
      Mr. Isham was heard in reply.
   The opinion of the Court was delivered by

Hutohinson, J.

We have examined the plaintiff’s scire fa-cias, and the exceptions taken on the special demurrer. One of them hardly exists in point of fact. There is truly no specific negative of Eldred’s having avoided the execution, &c. as the exception supposes necessary. But there is an averment of the return of non est inventus : also an averment that the said judgment yet remains in full force, and not reversed, annulled, set aside, or in any way paid, or satisfied, to the plaintiff.” These two averments fully answer that objection.

The want of a prout patet per recordum forms a more material objection. The form pursued has come from high authority, and is venerable for its antiquity ; but it falls short of the rules of the common law in this particular. The scire facias, against bail is a judicial writ, which never issues till, in contemplation of law, all its recitals are matter of record. The record is as necessary in support of this action, as in support of. an action of debt upon judgment; or in support of an execution. The general issue to this action can be no other than nul ticl record. The defendant is not permitted to plead any thing inconsistent with the facts so appearing upon record. He is not permitted to deny'diis having become bail. He is estopped by the record. When, therefore, the plaintiff sets forth facts to be thus operative upon the defendant, he must also allege that which gives those facts such operative force : that is, h'e must aver that they appear of record ; which renders them undeniable. The defendant may deny that there is such a record ; but if he admits the record, he must not deny its verity. The scire facias must be predicated upon something which warrants an execution; for it must recite that an execution issued 5 and it calls upon the defendant to show cause, why execution should not issue against him for the same debt and costs. For want of this averment, the declaration is defective, and falls before the demurrer.

Bennett, AiJcin and Smith, for plaintiff,

Church, Isham and D. Robinson, for defendant.

It may not be amiss, to mention an allegation in the form read as an authority, that was suited to the then existing laws, but which does not conform to our present statute. That form ayers what the defendant became holden for by endorsing the writ. That is, he became surety that the principal should appear in the suit, and respond the judgment, which should be therein obtained, if any. I do not think it necessary to insert any averment upon this point j but only say, by endorsing bis name, he became bail according to the statute. But, if the averment is made, it should be made according to fact or the Court, at some future period, will be troubled with a question of variance. And our present statute uses wholly different expressions, to describe the liabilities of the bail. He becomes holden to satisfy the judgment, which shall finally be rendered in the suit, in case a non est inventus be returned on the execution, unless he surrenders the principal in Court upon a scire facias, before judgment therein, and pay the cost of the same. If any such averment is made, it would be well to let it correspond in substance with these requisitions of the present statute.

Judgment that the declaration is insufficient.

Before the judgment was in fact entered, the plaintiff’s counsel moved for leave to amend, which was granted, on payment of a sum as cost.  