Gatliff v. Commonwealth

15 Ky. 166, 5 Litt. 166, 1824 Ky. LEXIS 54

• Court: Court of Appeals of Kentucky
• Decided: May 25, 1824
• Status: Published

Opinion

OPINION OF THE COURT,

BY JUDGE OWSLEY.

IN a proceeding had under the act of assembly reguluting that subject, Zachariah Davenport was adjudged by the county court of Whitley, a vagrant, and ordered to be hired out by the sheriff for seven months,

The sheriff accordingly exposed Davenport publicly and Gatliff became the highest bidder, at the price of forty-two dollars and twenty cents; but instead of requiring the money for thé hire to be paid down, the sheriff received from Gatliff a bond with security, taken the commonwealth, in the penalty of eighty-four dollars and forty cents, conditioned to pay the forty-two dollars and twenty cents within seven months,

This bond was returned by the sheriff to the county court of Whitley, and in pursuance to an order of that court, made after the seven months had elapsed, a scire issued thereon against Gatliff; and at a subsequent term, judgment was rendered by the county court in favor of the commonwealth for forty-two dollars and twenty cents.

The judgment, we think, cannot be sustained. The bond is evidently not of a character to authorise a proceeding against Gatliff by scire facias. Neither the law under which Davenport was adjudged a vagrant, nor the order of the county court directing him to be hired, gave to the sheriff any authority to accept such a bond for the hire. The bond cannot, therefore, with any propriety, be said to have created a debt of record, and, of course, does not warrant the proceedings by scire facias.

The judgment must, consequently, be reversed, the cause remanded to the court below, and the scire facias dismissed.