Governor v. Jackson

Decided January 15, 1849

Supreme Court of Alabama · decided 1849-01-15

Before the Hon, Thomas A. Walker. This was a proceeding by scire facias, by plaintiff, against defendant in error, as administrator of one Gregory. An indictment was found against Lemuel Leonard, in the circuit court of Lawrence, for an assault, with intent to murder. A capias issued, under which Leonard was arrested, and entered into a recognizance, with Gregory, and another, as his sureties, before the sheriff of Lawrence county, for his appearance to answer the charge.

Cited by 4 later decisions — most recently December 1879

4 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1849-01-15

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CHILTON, J.

¶1It is perfectly clear, that the sheriff had no power, by the laws of this state, to take the recognizance, proceedings upon which are attempted to be revived against the defendant in error. The principal was arrested upon a capias, for an offence punishable by imprisonment in the penitentiary. In such case, the law requires the sheriff “to convey the offender to the common jail, and there keep him in safe custody, until discharged by due course of law.” Clay’s Dig. 461, § 5. The recognizance being palpably void, there was no injury sustained by the refusal of the court to permit the revival of the proceedings against the administrator of the bail.

¶2Let the judgment be affirmed.