
    State vs. Amos Grigsby.
    Before bail in a criminal case can be made liable, the record ... must show that the principal was called and did not appear.
    
      Rivers, for plaintiff in error.
    
      Hays, Attorney General, for defendant.
   Catron, Ch. J.

delivered the opinion of the court.

The sci. fa. charges, that Luther M. Grigsby had been indicted in Giles county for the crime of forgery; that he was bound for his appearance, together with A. Grigsby and S. H. Grigsby, in the sum of 1000 dollars each, &c. Averment, that the said Luther, on the day to which he was bound, made default; and the said A. Grigsby and S. H. Grigsby, being called to bring into court the said Luther, failed to do so, whereby they had forfeited to the State, &c. To this there was a plea of nul tiel record, and replication. On the trial of the issue, the State produced a record, by which it appeared that Amos Grigsby had been called to bring into court the body of the said Luther, who came not, &c. but in that behalf made default. There was no evidence in the record showing that Luther Grigsby had not appeared as he was bound to do. This was clearly a failure of the record to sustain the issue between the averment and evidence. There is a substantial variance; because, from any thing that appears, there might have been no forfeiture. The sci. fa. says, Luther M. Grigsby came not, but made default, and Amos Grigsby, when called upon, failed to bring the body of Luther M. into court.

The evidence proves, that Amos did not bring the body of Luther. This might be true, and yet he may have come himself. The cause must be reversed and remanded to be further proceeded in. It is not deemed necessary to notice the manner of entering the judgment; it is erroneous, but on another trial may be corrected. Judgment reversed.  