
    HALL v. KERR.
    
    Bail for stay of execution — sci. fa. to charge bail — not cause against execution to show that debtor or his administrators have property.
    Bail for stay of execution on a justice’s docket does not show good cause to prevent an execution against him, by making it appear, that after execution and befóte levy, the defendant died, and assets to pay the debt have come to the hands of his administrators-Good cause on a sci. fa. against an order of execution in such case, shows a compliance with the recognizance, or its discharge by some act of a paity after it was acknowledged.
    Error.. Kerr recovered a judgment before a justice of the peace, and Hall became bail for stay of execution. After the time for the stay had expired, an execution issued, but before the money was collected, the defendant died and the execution was returned unsatisfied. A scire facias issued against Hall, to which he pleaded, that his principal, at his death, left effects sufficient to pay the debt, which passed as assets into the hands of his administrators, and yet remained unexhausted. To this plea there was a general demurrer, which the Court of Common Pleas sustained, and rendered a final judgment for Kerr, to reverse which this writ of error is prosecuted.
   Wood, J.

The undertaking of the bail is that the amount of the judgment may be made of him, if the debtor fails to pay when the time expires, to which the execution is stayed. 29 O. L. 191, 2. The law provides for the rendition of judgment against the bail for what is due, at the return of the scire facias against him, unless he show good cause to the contrary. 29 O. L. 192. The real question before us is, whether the death of the judgment debtor and the possession of assets by his administrators, is such good cause. The money is not realized by the creditor, the time has expired, and the bail stipulated on that condition to pay the debt. Good cause, in our opinion, is a compliance with the condition of the recognizance, or some act of the party after its acknowledgment, discharging its obligation. The plea shows neither. Suppose the plea had been that the debtor had property, &c. would that discharge the bail? It would not; for the law gives the bail an execution upon the judgment, to secure that, if he pay the money.

The judgment is affirmed with costs.  