Conover v. Gatewood

• Decision Date: 18 October 1820
• Citation: 9 Ky. 566
• Parties: John V. Conover v. Com'th for Gatewood.
• Court: Kentucky Court of Appeals

9 Ky. 566

John V. Conover v. Com'th for Gatewood.

Court of Appeals of Kentucky.

October 18, 1820

ON APPEAL FROM A JUDGMENT OF THE GALLATIN CIRCUIT COURT.

Haggin and Hardin for appellant

Talbot for appellee.

OPINION

CHIEF JUSTICE:

This was an action of debt upon a sheriff's bond. The condition of the bond is set forth in the declaration, and the breach alleged is in substance, that in virtue of a fieri facias, which issued at the suit of Saunders against the plaintiff, the sheriff by his deputy took two boats and a mare, the property of the plaintiff, and so negligently, and carelessly left the same, that they were wholly lost to the plaintiff and that during the retention and possession of the boats and mare by the sheriff, the plaintiff paid to Saunders the money due on the execution.

The defendants pleaded covenants performed, and the plaintiff replied severally, whereupon issue was joined, and a verdict and judgment having been rendered against the defendants they have appealed to this court.

It is objected by the assignment of error in the first place, that the declaration shews no cause of action in the plaintiff.

When the sheriff seized the goods of the plaintiff under the execution, it was undoubtedly his duty to keep them safely and this duty continued unquestionably as long as he had a right to retain their possession in virtue of the execution. It is true, when the plaintiff paid to Saunders the amount of the execution, he had a right to reclaim the goods, but the sheriff was not bound to restore them, unless he had sufficient evidence of the payment, and their restoration was demanded, and no such demand appears to have been made until the goods were lost. The duty of the sheriff, therefore, to keep the goods must have continued till the time of their loss, notwithstanding the previous payment of the debt by the plaintiff, and consequently, the loss of the goods by the negligence of the sheriff, was a breach of his duty. The right of the plaintiff to maintain the action, for such breach of duty results from his having paid the debt to Saunders, and having thereby acquired a right to the restoration of the goods. The idea suggested by the counsel for the defendants, that the plaintiff should have made a demand of the goods from the sheriff, before he could have maintained the action, is founded on a mistake of the true cause of action.

A sheriff levying on property and keeping...