Boyd v. Williams , 28 Ky. 56 ( 1830 )

Chief Justice Robertson,

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the circuit court, overruling a •motion by the plaintiff to quash a fien facias for $30 66 cents, issued against him in favor of the defendant on a judgment in detinue for a cart and a yoke of. oxen •or their value, which was assessed at $30 66 cents.

The circuit court erred.

The common law remedy for enforcing a judgment in detinue, was a distringas.

When a fieri facias issued, it conformed to the judgment, and must have been, without the statute of 1827, necessarily in the alternative; and then the defendant in the execution had the right to elect to surrender the property-or payits value.

The -act of 1827, authorizes an execution for the property absolutely and alone. But it does not allow the creditor to elect to take the assessed value, without the assent of the defendant in the execution.

By issuing an execution for the value alone, the defendant is deprived of his right to discharge himself by restoring the property. His only remedy is to move for the quashal of the execution. And his motion should be sustained, if made, as in this case, in proper time.

Wherefore, the judgment of the circuit court is reversed,' and the cause remanded, with instructions to quash the fieri facias.