196 Upon their discharge, pl'ffs may have fi.fa. without scire facias to revive judgment. Persons in custody under an order requiring bail, or writ of ne exe at, may be discharged, and how. civil process, the said justice shall issue an order to the jailer to discharge such person or persons from custody; and upon such person or persons being discharged under the provisions of this act, the plaintiff or plaintiffs, or person or persons beneficially interested in said demand, in the execution of which the person or persons so discharged may have been in custody, may have a new execution against the property of such person or persons so discharged, without suing out a scire facias to revive his judgment. SEC. 4. When any person or persons arrested (h) under an order requiring bail or a writ of ne exeat, shall desire to be discharged from custody, by taking the oath prescribed by the acts for the benefit of insolvent debtors, it shall be lawful for such person or persons upon giving reasonable notice to the party at whose suit he or they were arrested, his agent or attorney, if in the county, if not, upon filing such notice in the office from which was issued the process by virtue of which he or they may be in custody, of the time and place of such application, to apply to a justice of the peace for his or their To render a discharge; and upon rendering a schedule of his or their property, and taking the oath aforesaid, the justice of the peace shall issue an order to the officer in whose custody such person or persons may be, to discharge him or them; and the property contained in such schedule, shall be vested and disposed of in the same manner, and the same proceedings shall be had thereon as are now authorized in the case of insolvent debtors. schedule of property. Property, how vested and disposed of. 1829. Bail only to stipulate that defendant will not remove his effects out of the commonwealth On a return of "no property found," scire IN FORCE FROM ITS PASSAGE. AN ACT providing a remedy against Bail in civil actions: Approved January 29, 1829.-Session Acts, p. 172. SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That when any person shall hereafter be held to bail in any civil action, according to the laws now in force, the undertaking of the bail shall be, that the defendant or defendants shall not remove his, her, or their effects out of this commonwealth until the plaintiff's judgment, if one shall be recovered, is discharged. (i) SEC. 2. Be it further enacted, That upon a return of "no property found," on any fieri facias directed to the proper county, it shall be lawful for the plaintiff to cause a scire facias to issue (h) The arrests spoken of in the above section allude to those which take place on mesne process.-Gordon v. Ryan, 1 J. J. Mar. 56. (i) Under the above act, if the principal have estate and remove it out of the Commonwealth without satisfying the creditor's judgment, the bail will be liable, otherwise not. This liability cannot be extinguished by the surrender of the principal, after judgment.-Kirley v. Sprowl, 6 J. J. Mar. 92. against the bail, suggesting that the defendants have removed his, facias may isher, or their effects out of this commonwealth; and should the bail sue against bail not answer to the scire facias upon due execution thereof, or should Proceedings it appear to the satisfaction of the court upon issue joined, that the on scire facias, and judgment defendant or defendants hath removed his, her, or their effects out against bail. of this state, after the undertaking of such bail, and that the plaintiff's judgment remains unsatisfied, judgment of execution shall be awarded against the bail for the amount of the original judgment, or so much thereof as may remain undischarged. SEC. 3. Be it further enacted, That a return of "not found" upon two writs of scire facias directed to the proper county, shall be considered a due execution of the scire facias authorized by this act. SEC. 4. Be it further enacted, That upon the trial of any scire facias herein directed to issue, the defendant or defendants shall be allowed to plead and prove that the defendant or defendants in the original action, was insolvent at the time said bail was given; and if that fact be proven, it shall be adjudged a good defence. BAIL IN CRIMINAL CASES. 1785. IN FORCE FROM FIRST OF JANUARY 1787. AN ACT directing what prisoners shall be let to Bail.-12 Hening's Statutes at Return of "not found" on scire faicias, when sufficient. What defen dant may plead in bar of scire facias. Convicted fe bailed. SEC. 2. No person shall be bailed after conviction of any felony. lon not to be SEC. 3. If any justice let any go at large on bail who is not bailable, or refuse to admit to bail any who have right to be so admitted, after they shall have offered sufficient bail, or require excessive bail, (j) he shall be amerced at the discretion of a jury. 1805. IN FORCE THREE MONTHS AFTER ITS PASSAGE. AN ACT to amend the proceedings in Criminal Cases: Approved Dec. 24, 1805. 3 Litt. 291. SEC. 3. Whenever a capias shall issue on an indictment for a misdemeanor, or other crime bailable by law, it shall be the duty of the court to name the sum in which the defendant may be admitted to bail, which shall be endorsed by the clerk on such capias and sub. sequent process when it issues. And when the officer shall arrest such defendant, he shall admit him or her to bail, on his or her entering Penalty on justice for improperly grant ing or refusing bail Court to name and clerk to en dorse the am'nt of bail on indictment, for a bailable offence How defend () As to the constitutional provision in regard to bail-See constitution of Kentucky, Art. 10: Sections 15 & 16.-73 ante. and condition of bond. If forfeited, how proceeded on. ant to give bail, into a bail bond to the [governor for the time being, and his successors in office, to the use of the commonwealth,] (k) with two securities to be approved of by such officer, conditioned to be void on his appearing in court on the return day of such process, and surrendering himself or herself in custody: which bail bond, if forfeited, may be proceeded on in the same manner as a recognizance of bail taken before the court. (1) And if it shall so happen that the court shall If bail not not name the sum in which the defendant may be admitted to bail, the clerk shall fail to endorse it, the said process shall be good in law, and the defendant or defendants shall be admitted to bail by any circuit judge [or by one of the assistant judges of the circuit court,] on his or her petition for that purpose. endorsed on indictinent, how the defendant may obtain it. or 1809. IN FORCE FROM FIRST DAY OF MAY. AN ACT repealing all laws establishing Examining Courts in this Commonwealth: SEC. 6. Be it further enacted, That the justices, in taking bail of the accused shall in substance pursue the following form, viz: Form of the recognizance of County, to-wit: Be it remembered, that A. B., C. D., bail to be taken and E. F., this day personally appeared before us of the accused by the justices. and justices of the peace for said county, and severally acknowledged themselves indebted to the commonwealth of Kentucky in the sum of sum of of dollars, that is to say, the said A. B. in the dollars, and the said C. D. and E. F. in the sum dollars each, to be levied of their respective lands and tenements, goods and chattels; but to be void on the said A. B. 's personally appearing in the circuit court for the county aforesaid, on the first day (m) of their next term, and surrender himself in custody, to answer to the commonwealth for a felony (treason or (k) See act of 1809, requiring such bonds to be taken payable to the Commonwealth, post. (1) A recognizance taken by a circuit judge in term time, but out of court, on a charge of keeping a gaming table is void.-Commonwealth v. Littell, 1 Mar. 566. 2. The signature of a party is not necessary to a recognizance taken in court; the acknowledgment of the party of record is all that is required.-Madison, &c. v. Commonwealth, 2 Mar. 132. 3. In criminal cases the clerk has no power to take a recognizance of bail in his office, and if he do, the same will be void. The recognizance should not be acknowledged before the clerk, but before the court.-Chinn v. Com'lth, 5 J. J. Mar. 30. And the scire facias on the recognizance should shew that it was taken by a person having competent authority.--Ibid.Madison, &c. v. Com'lth, 2 Mar. 132. (m) A recognizance to appear at a term of a court, without designating any day, cannot be forfeited by a failure to appear on the first day of court.--Griffin v. Com'lth, Litt. Sel. Cas. 31. 2. Appearing by attorney, and inducing the court erroneously to quash a recognizance on the day of appearance, does not extinguish the recognizance; but as the defendant could not after an appeal literally comply with it, a reasonable time should be allowed him to appear in discharge of it after the reversal of the judgment quashing it.-Com'lth v. Thompson, 3 Litt. 285. murder, as the case may be) (n) with which the said A. B. stands charged before us. Acknowledged before us this day of .." Provided however, that nothing in this act contained, Other forms shall be so construed as to render void any recognizance which not made void. would be valid in law if this section had not passed. [By the 47th section of the act of 1796, concerning the examination and trial of criminals, &c. it is provided that no special bail shall be requirable in any suit brought upon a penal law, unless by such law bail be expressly directed. See the act, title CRIMINAL PROCEEDINGS, post.] IN FORCE FROM THE FIRST OF MARCH 1809. AN ACT to amend the Penal Laws of this Commonwealth: Approved February 11, 1809.-4 Litt. 79. SEC. 8. Be it further enacted, That hereafter in all criminal cases recognizances shall be taken to and in the name of the commonwealth of Kentucky, (o) and all process which may issue upon such recognizance shall pursue the same as taken, and conclude against the peace and diginity of the commonwealth of Kentucky, (p) and judgment shall be rendered and execution issue thereon in the name of the commonwealth of Kentucky. (q) [For Bail in cases of contempt and proceedings thereon, see title CONTEMPTS, post. Further as to Bail in criminal and penal cases, see titles CRIMINAL PROCEEDINGS and PENAL LAWS, post; and for Bail under the statutes to suppress gaming, see title GAMING, post. (n) It is not necessary for a recognizance for the appearance of one charged with felony, to state the species of the crime.-Fowler, &c. v. Commonwealth, 4 Mon. 130. 2. A recognizance to appear to answer an indictment for "gaming," is invalid; there is no law authorizing an indictment for gaming, and no judgment can be entered on a recognizance forfeited, when the charge is not such as will warrant a criminal prosecution.-West v. Commonwealth, 3 J. J. Mar. 642. 3. If a recognizance be for an appearance to answer a charge of "gaming" simply, and the scire facias describes it as a recognizance to answer an "indictment for gaming, by setting up and keeping a faro bank, upon which money was bet, and won, and lost," the variance is fatal. Commonwealth v. West, 1 Dana, 165. (0) Since the passage of the above act, recognizances in all criminal cases must be taken in the name of the commonwealth; and a prosecution for bastardy is a criminal prosecution within the meaning of the act.-Commonwealth v. Porter, 1 Mar. 44. 2. A recognizance taken to the commonwealth before the passage of the above act, was valid. -Leeper, &c. v. Commonwealth, Litt. S. C. 103. Recognizance how taken in all criminal cases, and form of scire facias regulated. It seems not necessary to call the principal prior to forfeiting his recognizance.—Ibid. A recognizance previously entered into cannot be pleaded in bar of another recognizance.-Ibid. (p) The clause, "against the peace and dignity of the commonwealth," is indispensable to a scire facias on a recognizance in a criminal case; but judgment against a scire facias for such defect should not be in bar, but that the scire facias be quashed.-Commonwealth v. Kimberlain, 6 Mon. 44; Downing v. Commonwealth, 4 Mon. 512. (q) Where the recognizance is not made part of the record by the proceeding in the court below, the court of appeals cannot go behind the scire facias and the recognizance as therein set forth.-Davis and Deason v. Commonwealth, 4 Mon. 113. 2. Where there is no personal service, the scire facias must be directed to the county in which the prosecution is depending, or where the party resides, and there must be a return of two nihils by the same officer before judgment can be had. -West v. Commonwealth, 3 J. J. Mar. 642. 3. In a joint scire facias, on a joint and several recognizance, on a charge of felony, a separate judgment may be had against one of the TITLE 21. BANK OF KENTUCKY. 1834. IN FORCE FROM ITS PASSAGE. AN ACT to establish the Bank of Kentucky: Approved February 22, 1834.- SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That there shall be, and is hereby established a Bank, by the name of the BANK OF KENTUCKY, with a capital stock of five millions of dollars; divided into shares of one hundred dollars each, to be subscribed and paid for by this Commonwealth, individuals, companies and corporations, in the manner hereinafter specified; which subscribers and shareholders, their successors and assigns, shall be, and they are hereby created a body politic and corporate, by the name and style of the President, Directors and Company of the Bank of Kentucky; and shall so continue a body politic and corporate, until the first day of October, one thousand eight hundred and sixty-four, and by that name, under the restrictions hereinafter prescribed, shall be competent to contract and be contracted with, to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended in all courts and places, and in matters as natural persons, with full power and authority to acquire, hold, possess, use, occupy and enjoy, and to sell, convey and dispose of, all such real estate, goods, effects and chattels as shall be convenient for the transaction of its business, or which may be conveyed to said Bank as surety for any debt, or which may be received in discharge of any delt, or purchased in satisfaction of defendants for the sum in which he was bound, without disposing of the scire facias as to the others.-Chinn v. Commonwealth, 5J. J. Mar. 30; Madison, &c. v. Commonwealth, 2 Mar. 132; Fowler, &c. v. Commonwealth, 4 Mon. 130. 4. A scire facias on a recognizance for the appearance of a party in court, must show that the recognizance was transmitted to the court.Simpson v. Commonwealth, 1 Dana, 523; Ma dison v. Commonwealth, 2 Mar. 132; Commonwealth v. McBrayer, 6 J. J. Mar. 617. 5. If a scire facias recites that the defendant was recognized to appear and answer a charge of felony, when the recognizance specifies no charge, the variance is fatal, and cannot be aided by reference to a record completed before the recognizance was taken.-Simpson v. Commonwealth, 1 Dana, 523. |