Lynch v. Buck

3 Ky. 372

• Court: Court of Appeals of Kentucky
• Decided: May 12, 1808
• Status: Published

Opinion

The Chief Justice, delivered the following opi-n'on foe court: — The errors assigned,are,that the general court erred in dismissing the writ of .error córam, vobis ; and, 2dly, in hearing the said cause, without plea or demurrer to the errors assigned.

*

„ , , , . , By the act of, December 1802,† motions to quash faulty replevin or forthcoming bonds, must be made at a COUrt, to be held between the return of said bond to the office, and the issuing or the first execution thereon ; or ^ext. after the issuing of said execution, and at no time thereafter ; and by the 5th section of the same act, writs ofterror:coram vobis-*, are required to be returned to the first day of a court to be held after the return of said bond to the office of said court, or to the court next after the issuing the first execution on such bond, and at no court thereafter.

See Blackburn vs. Bilbo, sSftr. foji. Allen, for the appellant; Hughes and C/«y, for the ap-pellees,

The writ of error coram vobis, was sued out for defects alleged in a replevin bond ; but was not sued out within the limitation prescribed' by the act aforesaid.* The general court, therefore, did rightly in dismissing the writ.-Judgment affirmed.

At a subsequent day of the term, Allen moved for a re-hearing ; principally, on the ground that the t'xeeution had issued on that which was not a replevin bond, there being no seal to the signature of the person who was entered as the security ; and, therefore; as to him, it was not a replevy bond, and would not, as respected the security, come under the rigid provisions of the acU referred to in the opinion ; but the court overruled the motion.†

As to this laft error, fee Lanfdale vs. Findley, ante 151.

.. 'fr- † Acts of 1802, ch. 72 p. 174.

The execution ifiued ihortly before a term of that court, and was returnable after the term. The writ of error corain vobis,' was fued out returnable to the term next after the return day of the execution.

5- P. decided fpring term 1810, Adams vs. Barnett, on a motion, by ti fe-curity, to quaih the replevin boiid, on a non eji faffum alleged*