Bowen v. Pyne

Ohio Supreme Court

Bowen v. Pyne

1 Wright 602, 1 Ohio Ch. 602

DecidedMay 15, 1834

StatusPublished

This text of 1 Wright 602 (Bowen v. Pyne) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bowen v. Pyne, 1 Wright 602, 1 Ohio Ch. 602 (Ohio 1834).

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Opinion

WRIGHT, J.

The position is correct, that the writ must show every material thing essential to the plaintiff’s right to recover, and amongst other things aver that the debt remains unpaid, by the bail. If the writ before us does not substantially allege this, the omission is fatal to the plaintiff’s right. It is first averred that execution yet remains to be made upon the judgment. If the principal or bail have in any way paid the judgment, then execution does not remain to be made of it. It is secondly averred, that the defendant has not satisfied the judgment, nor has the debtor’s body been rendered in execution. Now that the principal or bail have [623]*623in any way paid or otherwise satisfied the judgment, is wholly inconsistent with this averment, and does not, therefore, raise a legal presumption in favor of the defendant.

Upon the whole, we think though these averments might have been more technical, they do in substance set forth all the law requires to confer on the plaintiff the right to recover. Demurrer is overruled. Judgment for the plaintiff.

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WRIGHT, J.

The position is correct, that the writ must show every material thing essential to the plaintiff’s right to recover, and amongst other things aver that the debt remains unpaid, by the bail. If the writ before us does not substantially allege this, the omission is fatal to the plaintiff’s right. It is first averred that execution yet remains to be made upon the judgment. If the principal or bail have in any way paid the judgment, then execution does not remain to be made of it. It is secondly averred, that the defendant has not satisfied the judgment, nor has the debtor’s body been rendered in execution. Now that the principal or bail have [623]*623in any way paid or otherwise satisfied the judgment, is wholly inconsistent with this averment, and does not, therefore, raise a legal presumption in favor of the defendant.

Upon the whole, we think though these averments might have been more technical, they do in substance set forth all the law requires to confer on the plaintiff the right to recover. Demurrer is overruled. Judgment for the plaintiff.

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Bluebook (online)

1 Wright 602, 1 Ohio Ch. 602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowen-v-pyne-ohio-1834.