Latham v. Prather , 2 Ky. 123 ( 1802 )

In this cause two errors are assigned: 1st. That a judgment is entered up by default after the defendant had appealed. 2d. That the replevy bond is not a legal one. The secpnd error is not sufficiently particular to authorize the court in regard to it. And as to the first error, it appears from the record that the office judgment was entered up as the judgment of the court against Latham, the original defendant in the court below, omitting the common bail against whom an office judgment had also been.taken; 'and moreover that special bail was given on a previous day of the same term of court.

On which the court is of opinion, that although the giving special bail after an office judgment has been confirmed, without at the same time pleading to issue, is not authorized by law, and therefore does not release the common bail; yet that the judgment taken in court against the original defendant only, can be to him no just cause of complaint, and will operate as a release, by the plaintiff, to the common bail. Therefore, it is considered by the court, that the judgment aforesaid be affirmed; that the defendants may proceed to have the benefit of the same in the court below, and recover of the plaintiff ten per centum damages on the amount thereof, together with their costs in this behalf expended, which is ordered to be certified to the said court.