delivered the opinion of the Court.

This was an action of debt on hail bond. The bail pleaded three pleas, to which there was a demurrer, and the demurrer sustained, and judgment for the plaintiff in the Court below.

We are of opinion the demurrer was rightly sustained.

The question attempted to he made in error, was, whether the bail were excused of their liability to pay, inasmuch as they alledged, that before the time had expired in which they might have surrendered the principal, a certain act of the .General Assembly was passed, abolishing imprisonment in actions founded on contract. It cannot he collected from the record in this case, whether the original suit *216was founded on contract or tort; we cannot suppose it the one more than the other. The question intended to he relied on, does not arise out of the record.

The judgment of the Circuit Court is, therefore, affirmed, with one per cent, damages and costs.