Commonwealth v. Booker

• Decision Date: 07 June 1838
• Parties: The Commonwealth for Brown and Reed v. Booker et al.
• Court: Kentucky Court of Appeals

36 Ky. 441

The Commonwealth for Brown and Reed v. Booker et al.

Court of Appeals of Kentucky.

June 7, 1838

FROM THE CIRCUIT COURT FOR WASHINGTON COUNTY.

Mr. C A. Wickliffe for appellant.

Mr Owsley for appellees.

OPINION

ROBERTSON CHIEF JUSTICE.

The relators sued Forrest as sheriff and others as his sureties for alleged breaches of his official bond: first--in the failure of his deputy to sell some personal property upon which he had levied an execution, in their favor, against one Beam; and, secondly--in his " falsely (returning) thereon" -- " " " " not time to sell."

An officer is not bound to sell property on which he has levied when he finds that it be??ongs, not to the def't, but to a stranger.

The act authorizing a sheriff or other officer to summon a jury to try the right of property levied on, and claimed by a stranger, does not require him to take that course; the act is for the benefit of the officer who is not bound to avail himself of it, especially when he determines not to sell.

The defendants in the action pleaded, that, the relators had directed the deputy sheriff to levy their execution (and which he did accordingly levy,) on property in the possession of, and claimed and owned by, one Smock?? a stranger, and that the property so levied on, was not subject to the execution.

The Circuit Court overruled a demurrer to that plea; and thereupon, the relators having refused to reply, judgment in bar of their action was rendered by the Court.

This appeal brings up that judgment for revision.

If the plea be true, as it must be admitted to be on demurrer, the deputy sheriff was not bound by law to sell the property. It was not his duty to commit a continued trespass by detaining and settling property which he had wrongfully taken; and therefore, neither he, nor the sheriff, was legally responsible for his failure to sell; nor were the relators prejudiced thereby, in judgment of law--unless it was the duty of the deputy to summon?? a jury to try the right of property, so that (according to the statute of 1803,) he might be authorized to sell by the verdict of such jury, or by the failure to agree on any verdict, or might require the execution of a sufficient bond of indemnity, by the execution creditors, in the event of a finding that the property was not subject to execution.

But we do not understand the statute of 1803 (2 Stat. Law, 1334,) as requiring a sheriff to empanel a jury to try the right of property on which he shall have levied a fieri facias. The...