The opinion of the Court was delivered by

We have examined the plaintiff’s scire fa-cias, and the exceptions taken on the special demurrer. One of them hardly exists in point of fact. There is truly no specific negative of Eldred’s having avoided the execution, &c. as the exception supposes necessary. But there is an averment of the return of non est inventus : also an averment “ that the said judgment yet remains in full force, and not reversed, annulled, set aside, or in any way paid, or satisfied, to the plaintiff.” These two averments fully answer that objection.

The want of a prout patet per recordum forms a more material objection. The form pursued has come from high authority, *119and is venerable for its antiquity ; but it falls short of the rules of the common law in this particular. The scire facias, against bail is a judicial writ, which never issues till, in contemplation of law, all its recitals are matter of record. The record is as necessary in support of this action, as in support of. an action of debt upon judgment; or in support of an execution. The general issue to this action can be no other than nul ticl record. The defendant is not permitted to plead any thing inconsistent with the facts so appearing upon record. He is not permitted to deny'diis having become bail. He is estopped by the record. When, therefore, the plaintiff sets forth facts to be thus operative upon the defendant, he must also allege that which gives those facts such operative force : that is, h'e must aver that they appear of record ; which renders them undeniable. The defendant may deny that there is such a record ; but if he admits the record, he must not deny its verity. The scire facias must be predicated upon something which warrants an execution; for it must recite that an execution issued 5 and it calls upon the defendant to show cause, why execution should not issue against him for the same debt and costs. For want of this averment, the declaration is defective, and falls before the demurrer.

It may not be amiss, to mention an allegation in the form read as an authority, that was suited to the then existing laws, but which does not conform to our present statute. That form ayers what the defendant became holden for by endorsing the writ. That is, he became surety that the principal should appear in the suit, and respond the judgment, which should be therein obtained, if any. I do not think it necessary to insert any averment upon this point j but only say, by endorsing bis name, he became bail according to the statute. But, if the averment is made, it should be made according to fact or the Court, at some future period, will be troubled with a question of variance. And our present statute uses wholly different expressions, to describe the liabilities of the bail. He becomes holden to satisfy the judgment, which shall finally be rendered in the suit, in case a non est inventus be returned on the execution, unless he surrenders the principal in Court upon a scire facias, before judgment therein, and pay the cost of the same. If any such averment is made, it would be well to let it correspond in substance with these requisitions of the present statute.

Judgment that the declaration is insufficient.

Before the judgment was in fact entered, the plaintiff’s counsel moved for leave to amend, which was granted, on payment of a sum as cost.