Peteet v. Owsley, Rockcastle, 1828

PETEET v. OWSLEY.--SCIRE FACIAS.

COURT OF APPEALS OF KENTUCKY

23 Ky. 130; 1828 Ky. LEXIS 58; 7 T.B. Mon. 130

April 25, 1828, Decided

PRIOR HISTORY:  [**1]  Error to the Rockcastle Circuit; Joseph Eve, Judge.

DISPOSITION: Reversed and remanded with direction.

COUNSEL: Caperton, for plaintiff; Robertson, for defendant.

JUDGES: CHIEF JUSTICE BIBB.

OPINION BY: BIBB

OPINION

 [*130]  OPINION OF THE COURT, BY CHIEF JUSTICE BIBB.

John Owsley sued a writ of capias ad respondendum, against Edward Evans, bearing teste on the 29th June, 1824, and by affidavit procured an indorsement of the writ, that bail was required. According to the form given by statute, Benjamin Peteet acknowledged himself special bail by indorsement on the writ, on the 29th of June, 1824. Owsley recovered a judgment against Evans, at September term, 1824, sued a fieri facias, which was returned no property found. Whereupon he sued a scire facias against the bail, and had judgment against him for the damages recovered against Evans.

The recognizance of bail to the action, or special bail, is an undertaking well known, and the law is well settled, that the bail can never be subjected to answer the debt or damages without a ca. sa. against the principal. That is indispensable. The act of 1821 abolished all laws which authorized a capias ad satisfaciendum, and since that time no such [**2]  writ could lawfully issue, to forfeit the recognizance aforesaid. Therefore, no ca. sa. has issued in this case before suing the scire facias, and none could have lawfully issued. The bail piece can not, therefore, have been forfeited. Although the legislature did authorize bail to be demanded in certain cases, they failed to provide that any ca. sa. should issue against the principal in such cases, and did not provide any change in the undertaking of the bail, nor any mode by which the recognizance of bail should be forfeited. It is casus omissus, which this court can not supply. It does judicially appear that the bail piece had not been forfeited, and, therefore, judgment on the scire facias should have been for the defendant.

Judgment reversed, and the case remanded with direction to enter judgment for the defendant.

Plaintiff to recover his costs.