Upton v. Redman , 1868 Ky. LEXIS 286 ( 1868 )

Opinion op the Court by

Judge Hardin :

Testing the sufficiency of the petition in this case by the opinion of this court in the case of Hill for the use of Wintersmith against Barrett, &c., 14 B. Monroe 84, we incline to the opinion, that as it does not set out or state in terms or substance the covenants of the official bond of Redman, it fails to state facfs sufficient to constitute a cause of action upon the bond. But we are nevertheless of the opinion that the petition states facts which constitute a cause of action. It alleges that the two executions which are sufficiently described against Duckworth and in favor of the plaintiff, were collected by Job D. Redman, who refuses on demand to pay over the money, and alleges a joint liability of both defendants for the money so received to the use of the plaintiff. The general cause of demurrer jointly assigned by the defendants, simply raised the question whether or not the petition disclosed a cause of action, and as we are of the opinion that it did, it results that the court erred in sustaining the demurrer and dismissing the action.

Wherefore the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.