Sutherland v. Cunningham , 1 Stew. 438 ( 1828 )

By JUDGE PERRY.

■ The charge of the Court is assigned for error, and the last part is relied on for a reversal of the case ; but the whole charge must be taken together, and is to be considered as having been made with reference to the evidence. Then, does the testimony sustain the cause of action as laid in the declaration ? It seems, to the Court that it does not, for it is admitted and shewn by the proof, that the defendant took a replevin bond. If that bond had been such as contemplated by the statute of 1820, the sheriff could not surely be made liable for a false return ; and the bond being quashed, cannot alter the case. If it did, the ignorance of every officer -would subject him to the Imputation of fraud, when the party injured would have a remedy in a different way for taking an insufficient bond, in which fraud would not be necessary to sustain tbe action. The Court is therefore of opinion that the plaintiffs shew a cause of action different from that stated in the declaration. The judgement of the Court below must therefore be affirmed.

Judge White not sitting.