Gresham v. Bowen and Another

Gresham v. Bowen and Another. Monday, June 23. A ca. sa. issued under the statute of 1838 on a justice’s judgment, without a previous return of nulla Iona to a fi. fa.,- or an affidavit filed as prescribed by the statute, is illegal; and a bond for the prison-limits, executed rrpon the - arrest of the judgment-debtor on a ca. sa. so issued, is without consideration. ERROR to the Carroll Circuit Court. [MAJORITY — Dewey, J. Per Curiam.] Dewey, J. — A. H. and N. W. Bowen brought an action of debt against Hamilton and Gresham, on a prison-bounds bond. The declaration sets forth the recovery of a judgment by the plaintiffs below against Hamilton before a justice of the peace, the issuing of a ca. sa. upon the judgment, the arrest of ^Hamilton upon the execution, and the giving of the bond by Hamilton and Gresham upon which the action is founded. The condition of the bond is, that Hamilton should attempt no manner of escape,- but should remain a true prisoner within the prison-bounds. Breach, that Hamilton did not remain a true prisoner, but escaped and went at large beyond the prison-bounds, A return of “not found” was suggested as to Hamilton. Gresham demurred to a part of the declaration, and the demurrer was correctly overruled. He then pleaded three pleas, two of which, the first and the third, were properly decided to be bad upon demurrer. H. P. Biddle, for the plaintiff. A. L. Robinson, for the defendants. The second plea was, that no return of nulla bona had been made, nor affidavit filed before the justice, previously to issuing the execution on which Hamilton was arrested. A general demurrer to this plea was sustained. Damages assessed by the Court by consent of the parties; and final judgment for the plaintiffs. The judgment is erroneous. To authorize the justice to issue the ca. sa. on which Hamilton was arrested, there should have been a return of no goods found to a fieri facias, or an affidavit, prescribed by the statute, filed with the justice. R. S. 1838, p. 381. The plea negatives both the return and the affidavit, and consequently shows that the ca. sa. was illegally issued. The arrest of Hamilton, therefore, was unlawful so far as the plaintiffs were concerned, and the bond for the prison-bounds was executed without consideration. The demurrer to the second plea should have been overruled. Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.