Gore v. Murray

4 Ky. 270, 1 Bibb 270, 1808 Ky. LEXIS 217

• Court: Court of Appeals of Kentucky
• Decided: November 28, 1808
• Status: Published

Opinion

OPINION of the Court, b}'

Judge Bibb.

— -Murray sued out his writ of capias against Gore and M’Fall in, case, with an endorsement, signed by John Logan, re* quiring bail in the sum of 500 dollars. A conditional judgment and writ of enquiry was taken in the office against the defendants and their appearance bail, which enquiry was executed, and final judgment rendered by the court. To this the defendants have prosecuted this writ of error, and have made the assignment following :

“ 1st. The writ is void and illegal.

“ 2d. The plaintiff did not, by himself or attorney, make such an endorsement on the writ as the law requires.

“ 3d. The plaintiff has no cause of action,

“4th. The requisition of bail was illegal: 1st. there being no proper affidavit; 2d. it does not appear that the person requiring bail had a right to do so ; 3d. if he had a right it was only upon such an affidavit as the statute requires, which does not appear to have been, made ; 4th. the sheriff has returned the original bail bonds instead of copies.

“ 5th. The judgment is illegal, being against the defendants and bail.

“ 6th. The declaration is defective and illegal.”

The first and second assignments, with the three first members of the fourth, come too late alter judgment by-default. Those objections should have been made in the court below, within the time allowed for pleading in abatement. Nearly allied to these is the fourth member of the fourth assignment. Moreover, the predication of fart therein does not appear warranted by the record : but if it did, the conclusion would by no means follow ; the sheriff would only, in that case, have furnished the higher evidence, where the statute is content with the lower.

The fifth assignment must be predicated upon the 'former assignments, and must fall with them, as we see ho better foundation.

The third and sixth may be considered together» Both counts, in the declaration, are legal and sufficient to support the action ; and the breaches are well as= signed. — —Judgment affirmed.