Martin, Qui Tam v. Gorden ( 1816 )

Per Curiam.

This is a scire facias against the defendant, who became surety, as it is said, on an appeal bond for McNight, the defendant in the court below, and the person who appealed to the Circuit Court. Upon demurrer, one question is, whether the scire facias is proper, or the plaintiff below ought to have had judgment on motion? Another is, whether the scire facias ought to set forth so much of the appeal bond as to show that the defendant in the scire facias was liable as surety in the appeal bond. This scire facias states that it appears he was. The defendant makes a queer objection : he says, you ought to have had judgment entered against me without a citation; and now that you have cited me and given me fair notice and opportunity to make my defense, I will say you ought to have taken judgment without giving me any notice. The scire facias lies, although no motion *be ever made. The'appeal bond is made a part of the record, and Upon every debt due by record a scire facias will lie. But the bond ought to be set out, or at least so much of it as will show to the court the liability of the defendant; otherwise, the court cannot know whether he is bound or not. Judgment sustained.

See King’s Digest, 10,646, 10,676.