Thompson v. Thompson's Ex'rs , 46 Ky. 421 ( 1847 )

Judge Simpson

delivered the opinion of the Court.

This is an action of detinue for a slave, alledged in the plaintiff’s declaration to be of the value of four hundred dollars. The defendant, after the service of process, having made default, the Court, without the intervention of a jury, rendered a judgment for the slave, if to be had, if not, then for the sum of four hundred dollars, his value, as alledged in the plaintiff’s declaration.

A default of the defendant in an action of detinue, admits the plaintiff’s right of action to the property sued for, but not the value as stated, and a jury is necessary to inquire into, and assess the value, as well as the damages sustained by the plaintiff by reason of the detention. The defendant is materially interested in the value placed upon the slave. Notwithstanding he may discharge the judgment for the alternate value by a delivery of the slave, yet he may die or run away, or other unavoidable accidents may prevent his delivery, whereby the defendant becomes liable for the assessed value, whether it be or not the real value of the property sued for.

Wherefore, the judgment is reversed, and cause remanded for further proceedings consistent with this opinion.