Opinion
(Fall Riding, 1797.)
A paper purporting to be a bail bond and having all the forms of one except a seal, will not, on the plea of nul tiel record, support a sci. fa. calling on those who signed it to answer as bail.
SCI. FA. to have judgment and execution against the defendants, as bail for Fleming, against whom the plaintiffs had recovered judgment and taken out a ca. sa., which had been returned non est inventus; (17) and to this sci. fa. the defendants pleaded nul tiel record. The paper supposed to be a bail bond, and relied on as such by the plaintiffs, when produced, appeared to have all the forms of a bail bond, except the seal, which it had not.
This is a fatal variance. The sci. fa. states a bail bond as the ground of this proceedings, and by the act the sci. fa. can only issue to charge them as bail when they have executed a bond, and that is returned and filed amongst the records of the court. Laws 1777, ch. 2, secs. 16, 18, 19. Here it wants a circumstance material to the essence of a bond.
The Court adjudged there was no such record.