Cutshaw v. Birge

4 Blackf. 511, 1838 Ind. LEXIS 64

• Court: Indiana Supreme Court
• Decided: May 31, 1838
• Status: Published

Opinion

Blackford, J.

Scire facias against the defendants on their recognisance as special bail. Judgment by default against Birge. Fislar pleaded two pleas: 1st, That there was no judge’s order for bail indorsed on the writ in the suit against the principal, nor was the action founded on a written contract; 2dly, That in the action against the principal, there was not a sufficient affidavit to hold him to bail; nor was there a judge’s order for bail; nor was the action founded on a written contract. General demurrer to these pleas, and judgment for the defendant.

This judgment in favour of Fislar is erroneous. The pleas are evidently bad. The special bail, when sued on their recognisance, cannot defeat the suit by showing the proceedings in the action against their principal to be erroneous. The bail are concluded by the judgment against the principal. Lewis v. Brackenridge, May term, 1821.

Dewet, J. having been concerned as counsel was absent.

Per Curiam.

The judgment in favour of Fislar is reversed, and the proceedings, as respects him, subsequent to the joinder in demurrer set aside, with costs. Cause remanded, &c.