The opinion of the Court was drawn up by

The liability of the defendants originated from an indorsement of a writ, sued out in 1837, in favor of one Gipson, against the present plaintiff; and was incurred at that time. Thomas v. Washburn & al. recently decided in this county, but not yet reported. (Ante p. 331.) And such liabilities are expressly excluded from the operation of c. 114, $ 18, of the Revised Statutes.

But this scire facias, having been sued out since the adoption of those statutes, the defendants contend, that c. 146, § 6, of those statutes, provides a bar against the maintenance of it. The section provides, “ that all actions, against an indorser of a writ, must be commenced within one year next after judgment entered in the original action.” But it is very clear, that this section cannot apply to this case, because the judgment in the original action had been recovered more than a year before those statutes were in force. If it could be believed to have been the intention of the legislature to extend that provision to such cases it would be a nugatory act, as it would impair, or rather annul, the obligation of a contract. Besides : — the repealing act, forming a part of the Revised Statutes, <§> 2, expressly saves to parties all rights of action then existing. This right of action, therefore, may be regarded, as unquestionably saved from the limitation contended for.

It is further insisted, that it ■ does not appear of record, as it ought, in order to charge the defendants, that, upon the execution issued on the original judgment, the debtor therein *356avoided, or was unable to discharge the same. It is not questioned, that such an execution issued, and was duly returned within a year after the rendition of judgment, on which the officer, to whom it had been committed for service, had returned, that, for the want of property, he arrested the body of Gipson, and took bond, as provided by law, that he would cite the creditor, and disclose, &c. within six months. But it is contended, that this does not show, that the debtor avoided, or was unable to pay the amount for which the execution was issued.

In Ruggles v. Ives, 6 Mass. N. 495, C. J. Parsons held that a non est inventus returned, was conclusive upon the question of avoidance; and that a commitment was prima facie evidence of inability. The last part of this opinion has been commented upon, and explained in Harkness v. Farley, 2 Fairf. 491. The provisions of our statutes, since the decision in Ruggles v. Ives, in reference to debtors arrested on execution have been much varied; so that now it is considered, that a commitment is hardly to be deemed even prima facie evidence of inability; for one may, for divers purposes, suffer himself to be committed, when in possession of ample means to pay the debt.

But in the present case, there was no commitment. By statute a debtor, upon being arrested, had a right to give a bond, as was done in this case, and thereby prevent a commitment ; and secure a credit of six months further, in which to make payment, or to obtain a discharge. It might follow, then, if an execution be issued within the year, and the debtor be thereupon arrested, that no record evidence of his avoidance or inability to pay the debt, would exist. Hence all that can reasonably be required of a plaintiff in scire facias, in such cases, is to show, that, within the year after judgment, an execution issued, and was seasonably put into the hands of an officer for service, and that, within the time it had to run, he had caused to be done, whatever was reasonably practicable, to obtain payment from the execution debtor.

It results, then, that evidence of the inability of such debtor *357may be sought for elsewhere, than from what may appear of record in the original action, or on any execution issued on the judgment recovered in it. Accordingly it was held in Harkness v. Farley, and Thomas v. Washburn & al. before cited, and in Pallister v. Little, 6 Greenl. 350, that parol evidence was admissible, on one side, and on the other, to show the ability and inability of the execution debtor, provided the same were not inconsistent with the return of the officer on the execution against him.

In the case before us, after showing the execution issued, and arrest within the year, and the giving of the bond as by law allowed, the plaintiff proved, that the debtor forfeited his bond; and that on due process thereon, and judgment therein obtained, that the debtor and his surety were duly arrested on execution, and gave bond, as the debtor himself had done before; and that, after due proceedings were had for the purpose, they were both discharged, disclosing no property, not exempt by law from attachment, upon taking the poor debtor’s oath. And, moreover, the plaintiff offered testimony, which would have established the fact, that both Gipson and his bondsman had been insolvent ever since, and for years before the rendition of the judgment against Gipson. We cannot, therefore, hesitate in coming to the conclusion, that the plaintiff had used due diligence to collect his execution against Gipson; and had failed of success by reason of his inability to pay the amount for which it had been issued. The defendants must, therefore, as agreed, be defaulted.