
    JULY 20, 1801.
    John Rowan v. Robt. Rochester.
    
      Upon an appeal from a judgment of the Bardstown District Court
    
    1. There can he no recourse to the hail before a ca. sa. is sued out against the principal.
    2. But where, on an appeal to this court, it does not affirmatively appear from the record of an action against hail that a ca. sa. had not been sued out against the principal before the commencement of the action, this court will not presume that it had not been sued out; and the judgment against the hail affirmed.
   This case has .been assimilated to the case of Roberts and Lawless, which was determined in this court. In the case cited, if the recollection of the court be accurate, a transcript of the record of the proceedings against both principal and bail was brought into-this court, whether properly or not it is unnecessary now to determine ; whereby it appeared that no ca. sa. had ever been sued out against the principal, and of consequence, that the plaintiff in the court below could not legally be entitled to recourse against the bail. In the present case, a transcript of the record of the proceedings against the bail only is brought into court; and as it does, not thereby appear, by the pleadings or otherwise, that the plaintiff below is not legally entitled to his recourse against the bail, this court can not presume it. The pleadings in this cause have certainly been very informal, but not being substantially erroneous, and the merits of the cause appearing to have been fully decided on, this court is of opinion that the judgment of the district court be affirmed; that the appellees may proceed to have the benefit of their judgment aforesaid, and recover of the appellant ten percentum damages on the amount thereof, together with their costs in this behalf expended, which is ordered to be certified to the said court.  