
    Martin and Another v. Kennard.
    If a declaration on a bond for the prison limits set out the condition of the bond, it must aver the existence of the judgment and execution under which the bond was given.
    APPEAL from the Marion Circuit Court.
   Blackford, J.

This was an action of debt by Kennard against Marlin and Landis, on a bond for the prison bounds. The declaration states that Martin and Landis executed their bond, payable to Kennard, in the penal.sum of 132 dollars. It also states, that there is a condition to the bond, which recites that Martin had been delivered to the custody of the sheriff, by virtue of a capias ad satisfaciendum issued by a justice of the peace in favour o.f Kennard, and which concludes with stating, that the bond is to be void if Martin continues a prisoner. Martin suffered judgment by default. Landis pleaded several pleas in bar. The pleas were demurred to, and judgment on the demurrefs was rendered for the plaintiff below.

It is not necessary to examine the pleas, as we consider the declaration to be substantially defective. The declaration shows, that the obligation was given under the statute relative to the prison bounds. Itshould appear, therefore, by the declaration, that the obligee had previously obtained a judgment, and caused a capias ad satisfaciendum to issue, against the principal obligor. As the declaration shows the nature of the bond, it should have also shown the existence of a case, in which its execution was authorised by the statute. A declaration on a bail bond, setting out the condition, must show that a writ requiring bail, had previously issued against the person, for whose appearance the bond was given. 2 Chitt. Pl. 215. A decíaration on a replevin bond in the case of a distress, if it set out the condition, must show that the goods,'for the return of which the bond was given, had been distrained for rent. 2 Chitt. Pl. 218. So, in a suit on a bond for the prison limits, if the declaration describe the nature of the bond, it must aver the existence of the judgment and execution, .which gave occasion for the execution of the bond. •

J. Morrison, for the appellants.

J. H. Scott, for the appellee.

The declaration states,, that it is recited in the bond that a capias ad satisfaciendum had issued; but the statement of there being such a recital, is very far from an averment by the plaintiff of the existence of the writ.

The judgment for the plaintiff below must be reversed, and leave be given him to amend his declaration.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  