Peteet v. Owsley ( 1828 )

Chief Justice Bibb

delivered the Opinion of the Court.

John Owsley sued a writ of capias cul respondendum, against Edward Evans, hearing teste on trie 29th June, 1824, and by affidavit procured an endorsement of the writ, that bail was required. According to the form given by statute, Benjamin PelCet acknowledged himself special bail by endorsement on the writ, on the 29th June, 1824. Owsley recovered a judgment against Evans, at September term 1824, suéda fieri facias, which was returned no property found. Whereupon he sued a scire facias against 'the bail, and had judgment against him for the damages recovered against Evans.

The recognizance of bail to tbe action, or special bail, is an undertaking well known, and the law is well settled, that the bail can never be subjected to answer the debt or damages, without a'ca. sa. against the prim ipal. That is indispensable. Tbe act of 1821, abolished all laws which authorized n-capias ad satisfaciendum, and since that time no such writ could lawfully issue, to forfeit the recognizance aforesaid. Therefore, no ca. sa. lias issued in this case before suing the scire facias, and none could have lawfully issued. The bail piece cannot, therefore, have been forfeited. Although the legislature did authorize bail to be demanded in certain cases, they failed to. provide that any ca. sa. should issue against the principal in such cases,’ and did not. provide any change in the undertaking of the bail, nor any mode by which .the recognizance of bail should be. forfeited. It is casvs omissus, which this court cannot supply. It does judicially appear that the bail .piece had not been ferfeited, and therefore, judgment upon the scire facias should have been for the defendant.

Judgment reversed, and case remanded with direction to enter judgment for the defendant.

Plaintiff to recover bis costs.