Downing v. Commonwealth

20 Ky. 511, 4 T.B. Mon. 511, 1827 Ky. LEXIS 72

• Court: Court of Appeals of Kentucky
• Decided: April 28, 1827
• Status: Published

Opinion

Opinion of the Court by

Judge Mills.

This is a scire facias on a recognisance taken by the sheriff, in pursuance to an endorsement on a cavias, issued on an indictment by order of court, The defendant appeared and demurred to the scire facias, and his demurrer was overruled, and then pleas were filed and other proceedings had, and questions made, which terminated in a judgment for the Commonwealth; to reverse which this writ of error is prosecuted.

Scire facias issue on a recognizance in ta of the moved in case of indictments, must co de against the peace and dignity of the com'th. Form of such a scire facias. Hickey for plaintiff; Denny, Attorney General, defendant,

None of the questions made on behalf of the plaintiff in error, are worthy of notice, except one and that we are constrained to pronounce fatal to the scire facias, barely because the law is so written, and not because we are able to perceive the reason of it.

The act of Assembly, 2 Dig. L. K. 1007; imperiously requires that all process issued on such recognizances, “shall conclude against the peace and dignity of the Commonwealth.” and such conclusion is omitted in this scire facias; and we conceive the plaintiff in error could take advantage of this positive requisition on a demurrer.

The conclusion of process thus, but illy suits the form of the process in other respects, and it may frequently embarrass clerks to know where to insert it.

As the insertion is indispensable, we conceive that it comes in better at the conclusion of that part of the scire facias which alleges the calling of the defendant, and his failing to appear in discharge of his recognizance. For instance, in this scire facias, it more naturally comes in after the expressions ^having failed to appear in discharge of his recognizance;” it may there be added, “against the peace and dignity of the Commonwealth.’’

The judgment must be reversed, and the cause be remanded, with directions to the court below to quash the scire facias, and direct such further proceedings on the recognizance, as the law requires.