Benton v. Brown

• Decision Date: 30 November 1823
• Citation: 1 Mo. 393
• Parties: BENTON v. BROWN AND PRIEST.
• Court: Missouri Supreme Court

1 Mo. 393

BENTON

v.BROWN AND PRIEST.

Supreme Court of Missouri.

November Term, 1823.

ERROR FROM CAPE GIRARDEAU CIRCUIT COURT.

MCGIRK, C. J.

This was a sci. fa. on a bail bond. The sci. fa. showed, the bond was taken in a case in Cape Girardeau county, and the sci. fa. is brought in that county. The sci. fa. alleges, the bail bond was assigned by the sheriff to the plaintiff; but does not lay a venue for the assignment; but the venue laid for making the bond, is Cape Girardeau county. To the sci. fa. there was a general demurrer, and the demurrer was sustained, and judgment for the defendants. In the assignment of errors, and the argument of the cause, three ponits are made and relied on to sustain the judgment of the court below.

First. That a sci. fa. will not lie on a bail bond.

Second. That the bail bond is not assignable.

Third. That there is no venue laid in the sci. fa. where the assignment was made.

As to the first point, it has more than once been decided by this court, that a sci. fa. will lie on a bail bond.^(a) As to the second point, it has been decided by this court, that the bond is assignable by the sheriff to the plaintiff in the action. As to the third point, we find the law to be, that where there is a venue laid in the margin of the declaration, or in the commencement, that shall be the venue for all other matters (requiring a venue, but having none special) contained in the declaration. Here there is a sufficient venue in the commencement of the sci. fa.^(b) The judgment of the Circuit Court is reversed, with costs; and this court, proceeding to give such judgment as the court below ought to have given, order, that judgment be rendered here that the plaintiff have his damages, costs, &c.

(a). See Barton v. Vanzant, 1 Mo. 190.

(b). Gen. St. of 1865, p. 660, § 28.