Fitch v. Commonwealth for E. Bamberger & Co. ( 1871 )

Opinion of the Court by

Judge Peters:

After the demurrer was sustained to the original petition, a supplemental petition was filed, upon another bonfl of the sheriff with different obligors, and the original petition was abondoned. The action was brought against the sheriff for a failure to return an execution for thirty days after the return day thereof without reasonable excuse therefor, and the court below rendered judgment for the amount of the debt interest and costs and thirty per cent, damages thereon.

This judgment cannot be sustained. It is true that the cause of action set out in the petition is the failure by the sheriff and his deputy to return the execution to the office from whence it issued, for thirty days after the return day thereof, but appellees do not claim any damages beyond the debt, interest and costs in the petition. And as they failed to apprise appellants by any averment in the petition that the 30 per cent, damages were claimed, they were not entitled" to recover the same.

"Wherefore the judgment is reversed and the cause is remanded with directions for further proceedings consistent herewith.