Malone v. Samuel

10 Ky. 350, 3 A.K. Marsh. 350, 1821 Ky. LEXIS 136

• Court: Court of Appeals of Kentucky
• Decided: April 17, 1821
• Status: Published

Opinion

The Chief-Justice

delivered the opinion.

This was a scire facias to have execution upon a recognizance of special bail. Upon an agreed case, the court below gave judgment for the defendant, to which the plaintiffs prosecute this writ of error. It appears from the agreed case, that the defendant in the scire facias had become special bail in due form for Reuben Samuel, at the suit of the plaintiffs, who, after obtaining judgment in said suit, issued a capias ad satisfaciendum thereon against Samuel, returnable to the August rules, 1818, and that the sheriff returned thereon, “no property found;” that the scire facias issued on the 18th of September, 1818, returnable to the November term ensuing; and that on the second day of the term the sheriff had leave to amend bis return on the ca. sa. and thereupon struck out his former return, and inserted, in lieu thereof, “the defendant not found in my bailiwick.”

The propriety of permitting the sheriff to amend his return, cannot be questioned. It is the constant practice to do so in the courts of original jurisdiction, and the practice has been frequently sanctioned by this court. And the amendment, when made, must, we think, have relation to the time when the process was returned. If so, it results that the defendant in this case was fixed before the issuing of the scire facias, and consequently the judgment on the agreed case should have been for the plaintiffs.

Judgment reversed with costs, and the cause remanded that a judgment may be entered according to the foregoing opinion.