Harris v. Simpson

• Decision Date: 16 October 1823
• Citation: 14 Ky. 165
• Parties: Harris v. Simpson.
• Court: Kentucky Court of Appeals

14 Ky. 165

Harris v. Simpson.

Court of Appeals of Kentucky.

October 16, 1823

FROM THE ESTILL CIRCUIT COURT.

CAPERTON for plaintiff

TURNER for defendant.

OPINION

OWSLEY JUDGE.

This was a scire facias, brought by Harris upon the following acknowledgment by Simpson, on a capias ad respondendum, which issued from the clerk's office of the Estill circuit court, in favor of Harris, against Lewis Jones, and directed to the sheriff of Estill county " I do hereby acknowlege myself special bail for the within named Lewis Jones, in the suit herein named, as witness my hand and seal, this 24th of January, 1820."

A recognizance of special bail, taken by a sheriff out of the county of which he is sheriff, is extra official and void and the bail is not estopped from pleading this matter in a scire facias on a recognizance.

To the scire facias Simpson pleaded, that judgment ought not to be rendered, and execution issued against him in this case, because, he says, that the original writ of capias ad respondendum in favor of Harris, against Lewis Jones in the scire facias mentioned, was directed to the sheriff of Estill county, and that the said sheriff, to-wit William Beatty, had said Lewis Jones in custody, in the town of Richmond and county of Madison, on the day and date of said recognizance, and that he, the said Simpson, then and there, to-wit, at Richmond, in Madison county, and not in Estill county, entered into said recognizance, and this he is ready to verify, & c.

To this plea Harris demurred, and the demurrer being joined, judgment was rendered by the court in favor of Simpson. To reverse that judgment, this writ of error has been prosecuted.

Unless upon some technical rule of pleading, the defendant is estopped to allege the matter contained in his plea, there can be no serious doubt, but that the court below was correct in the judgment which it rendered against the plaintiff upon his demurrer. Wherever bail is required of a defendant, the sheriff may, no doubt, whilst in the regular discharge of his official functions, upon executing the writ, receive from the bail such an acknowledgment as that upon which the scire facias in this case is founded; and the acknowledgment, when so received, will, under the act of the legislature, have the force of a recognizance of special bail. 1 Dig. L. K. 257. But, to have the force of a recognizance, the acknowledgment must, we apprehend, be...