Commonwealth ex rel. Sanders v. Herndon ( 1834 )

Judge Underwood,

delived the Opinion of the Court.

This action was instituted upon the official bond of Herndon, to render him liable for a slave sold under execution, purchased by Sanders, aud afterwards recovered from him by the true owner, in an action of detinue.

A jury ivas empannelled to try the right of property, and upon their failure to render a verdict, the sheriff sold the slave. It seems that the jury informed the sheriff they could not agree, and dispersed.

No costs.

The liability of the sheriff to Sanders, if there be any, grows out of the sale of the slave to him.

The act of '1803, 2 Dig. 1047, makes it the duty of the sheriff to sell the property, where the claimant does, not succeed in establishing his right before the jury. If there is no verdict rendered in favor of the claimant, it cannot be said that he succeeds. Consequently, in such a case, the sheriff should sell; and if' he does, the act declares he shall “not be liable to any suit on account of such sale.” This suit is an attempt to make him liable, contrary to the letter and spirit of the statute, and cannot be sustained.

Judgment affirmed, but without costs, as defendants are in default.