¶1The opinion of the Court was drawn up by
¶2To charge the defendant as indorser, the avoidauce or inability of the original plaintiff must be shown. If the return on the original execution might have been evidence of avoidance, it is obviated by the return on the alias, which shows, that he had not avoided ; but that his body was arrested thereon. The question then is, whether his inability is sufficiently averred in the declaration.
¶3As the law formerly stood, the arrest and commitment of the body was sufficient evidence of inability. But an arrest, and a liberation therefrom on giving bond, as is set forth in the declaration, is not prima facie evidence of inability. It operates as an extension of credit, of which debtors, having the command of means, practically avail themselves. The condition of the bond assumes, that property may be disclosed, and thus become known, and made available to the creditor. Or if the condition of the bond is forfeited, as is averred in this case, the creditor has an ample remedy, as well as adequate security, upon that instrument. The forfeiture of the bond, rather implies the existence, than the want of property. If the debtor could have legally taken the poor debtor’s oath, it may fairly be presumed he would have done so, and thereby have liberated both himself and his sureties from the obligation of the bond. It does not appear to us, either that the avoidance or inability of the original plaintiff, is sufficiently averred in the declaration.
¶4Declaration adjudged, had.