Mayor v. Johnson , 5 Ark. 691 ( 1844 )

By the court,

Lacy J.

The point to be decided here is, does the declaration show a good cause of action. The demurrer to it goes to defeat the plaintiff’s right of recovery. Section 32, of chapter 116, of our Revised Statutes, declares that “the plaintiff in the original suit shall not be entitled to bring an action or scire facias on the bail bond until an execution against the property and body of the defendant, shall have been issued to the county in which the bail was taken and the same returned unsatisfied in whole or in part, and that the defendant could not be found within the county.” The meaning of this section is clear and peremptory. The liability of the bail is alone fixed on the express condition that the plaintiff first pursues the original debtors, and exerts all the means in bis power to make the money out of him or them. He is bound to issue an execution against the property and body of the defendant or defendants, and haye nulla bona and non est returned on the execution. Until he does this, he has no cause of action on the bail bond. The law holds him strictly to the performance of this precedent condition, or he must show a valid excuse for his omission. This the declaration in the present case does not aver. It states the execution of the bail bond, and the rendition of judgment against Gray and Sutton, and that a Ji. fa. and ca. sa. issued against Gray, (for whom Johnson bound himself as bail), but the execution was only against the property of Sutton and not against his body. The return as to Gray was nulla bona and not found, and the like entry was made as to Sutton. But the latter part of the return as to the body of Sutton was irregular and contradicted by the execution. It contained no authority to take his body. The declaration does not show any sufficient excuse why the execution did not contain a clause of ca. sa. as to Sutton, and as that was a precedent condition, of course it is defective and cannot be sustained. For aught we can tell, had it contained such a clause, the seizing of the body of Sutton in execution would have brought the money and have exonerated the bail. Be that as it may, the plaintiff was bound to alledge-that fact, or to aver some other matter that will excuse the averment. This view of the case dispenses with the necessity of determining the other questions raised by the transcript. Judgment affirmed.