Whittington v. Deering , 26 Ky. 684 ( 1830 )

Chief Justice Robertson

delivered the opinion of the Court.

Walker Deering brought an action oí’ replevin against Tsaac Whittington for a slave. Whit-tington pleaded, that as deputy sheriff, he levied a fieri facias on the slave, in favor of John T. Johnson, against Simeon Deering, and that the slave was subject to the execution. A demurrer to this plea was sustained, and the avowant failing to plead over, a jury was sworn to inquire of damages, and assessed them to one cent. The judgment of theci. cuit court was thereupon rendered for the costs and damages assessed.

The avowry was insufficient; whether the slave was subject to the execution or not, is a deduction of law, and the facts are not stated. It is not alleged that Simeon Deering had title to, or was in possession of the slave; nor is any oilier fact averred, which,-if true, would show that the slave was subject ktthe execution. The avowry does net transfer the right of W. Deering.

Wherefore, the demurrer, was properly sustained; and therefore the judgment o.f^fee circuit court is affirmed.