
    James Kirkpatrick and John Wilson against Alexander M‘Williams.
    brought on^apbefore a trate, without final ]>rocess being ibsued against the oSrSppoalcait
    This was a summary process, brought on an bond, taken before a Justice oi the v\popp p^ciCC.
    The defence insisted on at the trial of the case, was, that the defendants were not liable to be sued on this bond, until the defendant, James JCirkpalrick, had failed, and that an execution ought, in the first instance, to have issued for the same. James White, Esquire, who presided as Judge, under special appointment on this occasion, decreed for the plaintiff for the amount of debt and costs, recovered before the niagistrate.
    An appeal is made to this Court to reverse the decision of the presiding Judge, on the ground above stated.
   The opinion of the Court was delivered by

Mr. Justice Gantt.

The Court before whom the appeal was tried, may certainly award execution against the person or persons cast in the appeal in the first instance. But it does not follow that the appellee may not have recourse to the remedy on the appeal bond, if he elects to do so. it is possible appellant may have been in insolvent circumstances, in which case it would have been nugatory to have issued an execution; and the law never forces a person to a vain or foolish thing. But . without such cause, it was perfectly Competent for the appellee to adopt the remedy by action on the appeal bond, and I am of opinion that th§ decree was correctly given.

GrimJcé, Colcock, JYott, Cheves, and Johnson, J. concurred.  