M'Mahan v. Knox

OPINÍON¾f the Court, by

Judge Owsiey. —

This is an appeal from a judgment rendered in favor of the ap-pellee, in a scire facias brought by him against the appellants.

The object of the sdre f idas was to subject the appellants, as special bail, to the payment of a judgment previously obtained by Knox against William Stringer. The writing recited as the recognizance upon which the appellants were sought to be made liable, is as follows :

We, William M’Mahan and Samuel Potter, do hereby acknowledge ourselves special bail for William Stringer, in the Logan circuit court, wherein Joseph Knox is plaintiff and said Stringer defendant. Witness our hands and s, als the 3d day of July 1813. William Stringer, Wm. M’Mahan, Samuel Potter, Ira Wood-ruff.”

Cut because it is not shown in the sdrefadas before whom the writing was taken, the sdre facias is insufficient to warrant a judgment against the appellants: for if it was not acknowledged before the proper person au-thorised to take the recognizance of bail, it cannot form the basis of a recovery by sdre fadas. — (4 Littell 176.) Besides, it is not shown the suit against Stringer was depending in court when the writing referred to was acknowledged ; and hence there is nothing in the sdrefa-das from which it can be judicially inferred that the appellants’ undertaking applied to the suit in which the judgment mentioned in the sdrefadas was recovered.

The /judgment of the court below must be reversed with rests, the cause remanded to that court and the scire fadas there dismissed with costs.