#### WILLIAM A. HAMLIN *vs.*DANIEL McNEILL & AL.

Under the plea of *ml tiel record*to a *scire facias*against bail, no evidence can be given of any objection to the bail bond. The bail bond is no part of the record.

A plea that the defendants were not bail is not a good one.

If the persons alleged to be bail wish in any way to avoid the bond, they must plead *non esi factum.*

Appeal from the Superior Court of Law of Chatham County, at the Fall Term, 1846, his Honor Judge Battle presiding.

This is a *scire facias*against Daniel McNeill, John McNeill, and Henry Arnold, as the bail of James McNeill, in an action of covenant brought by the plaintiff against James and Daniel McNeill. Among other pleas were that of *nul tiel*record, and also that John McNeill and Henry Arnold were the bail of Daniel McNeill, and not of James McNeill.

Upon the trial, the plaintiff produced the record of his recovery against the principal, James McNeill. It appeared thereon, that the action was brought against James McNeill and Daniel McNeill, to September Term, 1840, of the Superior Court, and that at March Term, 1841, the plaintiff entered a *nolle prosequi,*as to Daniel, and afterwards recovered judgment against James, as set forth in the *scire facias.*

The defendants then gave in evidence the bond, which t as they alleged, was that they entered into as the bail bond.' It purported to have been given by James McNeill, Daniel McNeill, John McNeill, and Henry Arnold, with a condition, “ that if the above bounden James McNeill and Daniel McNeill, do make their personal ap*173pearance ai &c. then and there to answer William Hamlin of a plea of covenants broken to his damage,” &c.

The counsel for the defendants thereupon insisted, that from the bond itself it appeared, that Daniel McNeill was one of the defendants in the action of covenant, and executed the .bond as a principal and not as the bail of the other principal, James McNeill; and, therefore, that as the *scire facias*alleged, that the three defendants were the bail for James McNeill, there was such a variance between the *scire facias,*and the bond, that the plaintiff could not recover in this action against any of the defendants. Other points were made by the counsel, but the Court gave no opinion on any one, but that here stated; and on that the opinion of the presiding Judge was for the defendants. From a judgment accordingly the plaintiff appealed.

No counsel for the plaintiff.

*D. Reid, Strange, Kelly,*and *Haughton,*for the defendants.

Ruffin, C. J.

As the bond was not put upon the record by oyer, nor its execution,; contents, or operation, put in issue by the plea of *non est factum,*the point decided could in no way arise. It was argued, indeed, that the bail bond was by law returned with the writ, and therefore, that it makes part of the record, which the plaintiff was obliged to produce under the issue on *nul ticl record.*But it has been expressly decided to the contrary. *Mason*v. *Cooper,*1 Law Repos. 472. So far from its being part of the record within that issue, the Act of 1777, Rev. Stat. ch. 10, s. 6, assumes that the plea must be *non est factum,*in order to put a bail bond -its' issue, and prohibits its admission unless upon affidavit of^in truth. If it formed part of the record, its execution could not be *174contested at all; and the consequence would be, that a person would be concluded by the return of the sheriff. It is not like the cases cited from the English Courts of *nul tiel record*pleaded to *sciré facias*on recognizance of bail; for the recognizance is a judicial act of record, but the bail bond is an act *in pais*by the sheriff. Such being the case there was no mode, in which the defendants could legally get .the bond before the Court on these pleadings. The plea, that the defendants were not the bail of James McNeill, is but collaterally traversing the operation of the deed, executed by the defendants themselves, which cannot be done ; for as the liability arises upon the deed, it is to be put in issue by the party upon *non est factum*only. On that plea, advantage may be taken of a variance in the'tenor or legal effect of the instrument from that stated in the pleadings.

Of course under those circumstances it is unnecessary, if not improper, that the Court should discuss or decide on the correctness of the opinion given in the Superior Court.

Per Curiam. Judgment reversed and *venire de novo.*