Kennedy v. Ford, 2 Ky. 132

Kennedy v. Ford

2 Ky. 132 | Ky. Ct. App. | 1802

The errors which appear in this record are:

1st. That a common order was taken and confirmed against the defendant and his appearance bail, after special bail had been given. i

■ 2dly. That a writ of inquiry was executed, without correcting the errors upon the rules, and judgment rendered by the court against the defendant and his appearance bail.

*133There is nothing which could justify any proceedings against the appearance bail, inasmuch as a recognizance of special bail had been regularly taken before a magistrate, and delivered to the clerk of the court, prior to the time of entering up the common order. The clerk’s certificate, annexed to the writ of certiorari, proves the delivery of the recognizance to them, at a proper stage of the proceedings, to prevent any step from being taken against the bail, and, whether he filed it among the, papers in the cause, agreeably to the direction of the law, or not, the bail can hot be responsible, because every thing which the law requires, to effect his discharge, had been complied with. Therefore, it is considered by the court, that the judgment aforesaid be reversed and set aside; that the. cause be remanded to the court from whence it came for new proceedings to be had, to commence from filing recognizance of special bail, and that the plaintiffs recover of the defendant their costs in this behalf expended, which is ordered to be certified to the said court.