Ross v. Ellis

29 Ky. 91, 6 J.J. Marsh. 91, 1831 Ky. LEXIS 133

• Court: Court of Appeals of Kentucky
• Decided: May 3, 1831
• Status: Published

Opinion

Chief Justice Robertson

delivered the opinion of the court.

This is a scirefacias against special bail, sued out since the abolition of the ca. sa., on a recognizance entered into prior to the abolition. The circuit court sustained a demurrer to the scire facias, and thereupon, the plaintiff failing to amend, judgment was rendered for the defendant. <

The scire facias does not aver, that a ca. sa. had ever been issued against the principal; and this omission furnishes the only objection to the scire facias, . . .

. . . In a scire facias against special bail, it was never necessary to aver that a ca. sa. had been issued; and, of course, such an averment cannot be required now, when a ca. sa. cannot be issued. Whether, in this case, the liability of the bail has been fixed, or whether he has been or may be exonerated, must depend on extraneous tacts, which do not appear m this record, anti which were not, and could not have been, decided on the demurrer.

Wiclcliffc and Woolcy, for plaintiff!

Wherefore, as the scire facias is good, the circuí' court erred in sustaining the demurrer to. it.

Judgment, reversed, and cause remanded for further proceedings.