Brand v. Creason

Court of Appeals of Kentucky

Brand v. Creason

29 Ky. 344, 6 J.J. Marsh. 344, 1831 Ky. LEXIS 191

DecidedApril 24, 1831

StatusPublished

This text of 29 Ky. 344 (Brand v. Creason) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brand v. Creason, 29 Ky. 344, 6 J.J. Marsh. 344, 1831 Ky. LEXIS 191 (Ky. Ct. App. 1831).

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Opinions

Chief Justice Robertson,

delivered the opinion of the court.

, Brand sued Creason as Sheriff, and others as sureties in his official bond. He alleged that a. fieri facias in his favor against Mason and Owings, was delivered to the sheriff to levy; who, without authority, suffered Mason alone to replevy it for two years, by giving two sureties.

Three breaches are assigned.

1st. That both Mason and Owings were solvent at the date of the replevin bond, but that since that time, Mason and his sureties had become insolvent, so that nothing bad been or could be made out of them by execution on the replevin bond.

2d. That Mason and sureties were insolvent at tbe date of the replevin bond.

3d. That the sheriff had no right to suffer a longer replevin bond than three months.

The defendants pleaded covenants performed, and unon infrcgit” on which issues were concluded.

They also filed a third plea to the first breach, and a fourth plea to the third breach, averring in each, that the replevin bond had not been quashed, but still remained in full force. Demurrers to these pleas having been overruled, the jury was sworn to try the issues, and found a verdict for the defendants.

The plaintiff insists that the circuit, court erred in overruling the demurrers to the third and fourth pleas.

Whether the solvency of the obligors in the rc-[345]*345|>levin bond; orthe failure of the plaintiff to attempt to procure thequashel of the bond, would materially affect the responsibility of the sheriff, need not now be decided. The defendants derived no advantage from their second and fourth pleas; no notice was taken of them after the court overruled the demurrers to them; one of the issues on the first and second pleas, although not strictly technical, may be considered good after verdict. The issue was comprehensive, and embraced the whole cause of action. The jury found a verdict upon it, for the defendants. There was no motion for a new trial; nor does it appear, that evidence was adduced on the trial; as, therefore, the jury seem to have tried the whole case on the first and second pleas, it cannot be material whether the demurrer to the third and fourth pleas had been overruled or sustained.

Petition for. a re-hearing.

Wherefore, the judgment is affirmed.

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Chief Justice Robertson,

delivered the opinion of the court.

, Brand sued Creason as Sheriff, and others as sureties in his official bond. He alleged that a. fieri facias in his favor against Mason and Owings, was delivered to the sheriff to levy; who, without authority, suffered Mason alone to replevy it for two years, by giving two sureties.

Three breaches are assigned.

1st. That both Mason and Owings were solvent at the date of the replevin bond, but that since that time, Mason and his sureties had become insolvent, so that nothing bad been or could be made out of them by execution on the replevin bond.

2d. That Mason and sureties were insolvent at tbe date of the replevin bond.

3d. That the sheriff had no right to suffer a longer replevin bond than three months.

The defendants pleaded covenants performed, and unon infrcgit” on which issues were concluded.

They also filed a third plea to the first breach, and a fourth plea to the third breach, averring in each, that the replevin bond had not been quashed, but still remained in full force. Demurrers to these pleas having been overruled, the jury was sworn to try the issues, and found a verdict for the defendants.

The plaintiff insists that the circuit, court erred in overruling the demurrers to the third and fourth pleas.

Whether the solvency of the obligors in the rc-[345]*345|>levin bond; orthe failure of the plaintiff to attempt to procure thequashel of the bond, would materially affect the responsibility of the sheriff, need not now be decided. The defendants derived no advantage from their second and fourth pleas; no notice was taken of them after the court overruled the demurrers to them; one of the issues on the first and second pleas, although not strictly technical, may be considered good after verdict. The issue was comprehensive, and embraced the whole cause of action. The jury found a verdict upon it, for the defendants. There was no motion for a new trial; nor does it appear, that evidence was adduced on the trial; as, therefore, the jury seem to have tried the whole case on the first and second pleas, it cannot be material whether the demurrer to the third and fourth pleas had been overruled or sustained.

Petition for. a re-hearing.

Wherefore, the judgment is affirmed.

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Bluebook (online)

29 Ky. 344, 6 J.J. Marsh. 344, 1831 Ky. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brand-v-creason-kyctapp-1831.