Citation Numbers: 27 Ky. 206
Judges: Robertson
Filed Date: 6/26/1830
Status: Precedential
Modified Date: 7/29/2022
delivered the opinion of the court.
Stmpiibns having, as constable, levied executions in his hands, against Joseph C. Gale, on a horse in Gale’s possession, delivered the horse to Vaughan for safe keeping, and thereupon Vaughan covenanted to deliver him to Stephens, at a place and on a day, designated in the covenant.
Vaughan having failed to deliver the horse, Stephens brought this suit against him, for a breach of his covenant. To this action, Vaughan filed t<Jo pleas. The circuit court overruled a demurrer to these pleas; and Stephens having failed to reply to either of them, judgment was rendered against him.
As one demurrer was filed to both pleas, if either of them be good, the judgment of the circuit court should be affirmed. But neither of the pleas, contains matter sufficient to bar the action.
The first plea alleges that Charles Miles, who had an action of detinue pending against Gale for the horse at the time of the levy on him, had, after the delivery of him to Vaughan, but before the day stipulated for his delivery to Stephens, filed a bill in chancery against Gale, to restrainhisinjuriny or removing the horse beyond the jurisdiction of the court before the trial of the suit at law, in consequence whereof, the sheriff was directed by the chancellor to take the horse and deliver him to Miles, unless Gale should give security that he should be forthcoming, and that ail damages for his detention, should be paid; and that Gale having failed to give the security required, the sheriff, in pursuance of the order, had taken the horse and delivered him to Miles, who had ever since kept him.
The 2nd plea, after averring the same facts, in substance, as those contained in the first plea, alleges that Gale had no right or title to the horse when Stephens levied the execution on him.
The first plea is insufficient, for several reasons:
The bill was against Gale only; and the order thorised the sheriff to take the horse from Gale. It . certainly gaye no authority to take him from any other person, who was not the bailee of Gale and did not acquire the possession from him. Unless the sheriff had other authority than that asserted for him in the plea he committed a trespass on Vaughan, when he took from him the horse; and consequently his tortious act cannot he considered the act of the law, nor can it excuse Vaughan.
2nd. The plea does not aver or otherwise state that the sheriff took the horse before the day on which Vaughan had covenanted to deliver him to Stephens. If the sheriff had authority to take him, unless he took him before that time, the covenant was broken without the semblance of excitse.
The plea may therefore be true, and still not bar the action.
3rd. The plea does not show that the sheriff had sufficient authority to justify the siezure of the horse, even in Gales possession.
The additional mail or on the second plea does not render it efficacious as a bar. As Vaughan had acquired the possession from Stephens and covenanted to restore it on a given day, the fact, that the horse was not sub-jeettothe execution, will not excuse the non-delivery, The bailee, cannot deny the right of his bailor, unless he can show that it had been ascertained judicially that some other person had a right to demand a restitution; or unless he could prove that some other person, having abetter right than his bailor had to the proper
. If the horse had not been subject to the execution, and if Stephens was not rendered liable, to the execution creditor for his value, in consequence of the contract of Vaughan, then, although there would be a breach of the covenant, according to the pleadings and proof in this record, nevertheless nominal damages only might be recovered.
As the pleas are insufficient to bar the action; the .judgment is reversed and the cause remanded for a re-pleader.