
    Varner v. Crabb.
    By the statutes of 1838 the bail was not liable to an execution without a scire facias.
    
    
      Scire facias. The suit was founded on an entry made in 1842 as bail for the stay of execution. The scire facias stated that execution issued in June, 1843, and was returned in July, of the same year, no property found. The defendant objected that the scire facias did not show that the debt could not have been collected under the execution which issued against the principal. Held, that the objection was well founded and fatal to the scire facias.
    
    ERROR to the Parke Circuit Court.
    
      Friday, July 26.
   Blackford, J.

This was a scire facias, issued in 1847, by a justice of the peace, in favor of Tamer against Crabb. The suit was founded on an entry on the justice’s docket, made by the defendant in 1842, as bail for the stay of execution. The scire facias stated that an execution against the principal was issued on the 14th of June, 1843, and was returned on the 6th of July, 1843, no property found. The justice gave judgment for the defend-, ant, and the plaintiff appealed to the Circuit Court. The parties appeared in the Circuit Court, and, on the defendant’s motion, the suit was dismissed at the plaintiff’s costs.

The defendant contends, in support of the decision below, that there was no law authorizing the issuing of the scire facias at the time it issued. But we think this position is not tenable. The entry of bail was made under the statute of 1838; and, by that statute (which must govern this case), the bail was not liable to an execution without a scire facias. R. S. 1838, p. 374.

The defendant, however, makes an objection to the scire facias which is fatal; which objection is, that the scire facias does not show that the debt could not have been collected under the execution which issued against the principal. The execution was returnable, by law, at the expiration of one year from its date. R. S. 1843, p. 1,046. The return to the execution was not made, according to the scire facias, until long after the return day; and it does not appear that anything had been done by the officer, under the execution, whilst the same was in force.

J. A. Wright and $. F. Maxwell, for the plaintiff.

W. P. Bryant and A. L. B,oache, for the defendant.

The plaintiff contends that the scire facias, if objectionable, should have been demurred to. It ¿ppears, however, that the plaintiff was present when the motion to dismiss was made, and it does not appear that he objected to that form of raising the question. It is too late, were the objection otherwise tenable, to make it now.

Per Curiam,.

The judgment is affirmed with costs, &c.  