October 20, 2012

Frost v. Reynolds, Wayne, 1834

Previously:


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Frost vs. Reynolds.

COURT OF APPEALS OF KENTUCKY

32 Ky. 94; 1834 Ky. LEXIS 23; 2 Dana 94

April 17, 1834, Decided

PRIOR HISTORY:  [**1]  FROM THE CIRCUIT COURT FOR WAYNE COUNTY. 

DISPOSITION: Judgment reversed, with costs, and cause remanded, with directions.

COUNSEL: Mr. Buckner for Plaintiff: no appearance for Defendant. 

JUDGES: Judge UNDERWOOD. 

OPINION BY: UNDERWOOD 

OPINION
 [*94]  Judge UNDERWOOD delivered the Opinion of the Court.

THE demurrer to the scire facias should have been sustained.

The scire facias has been drawn so unskillfully, that we are constrained to pronounce it destitute of substance as well as form.

A scire facias against bail should set out the pendency of the action; the issuing of the process; the order requiring bail; the nature of the undertaking of the bail, in the words of the recognizance or the substance of them; that the recognizance or bail piece was entered into before the sheriff or other proper officer, while the writ or process was in full force, and in his hands; the rendition of the judgment, the issuing of execution thereon, directed to the proper county, and the return by the proper officer, "of no property found." These things being done with certainty, according to the record, the foundation is exhibited upon which the liability of the bail rests. The scire facias should then proceed [**2]  to suggest or charge, that the defendant in the action against whom the judgment was rendered, had removed his effects out of the commonwealth after the undertaking of the bail, and conclude by commanding the sheriff to summon the bail, to appear, to make known or to shew cause, if any he can, why judgment of execution shall not be awarded against him. The foregoing  [*95]  is required to make out a clear right to recover against the bail, under the act of the 29th of January, 1829. The scire facias must present such a right, and is defective if it does not.

Judgment reversed, with costs, and cause remanded, with directions to enter judgment on the demurrer, in favor of Frost.

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