Cole v. Cole's administrator

7 Ky. 340, 4 Bibb 340, 1816 Ky. LEXIS 48

• Court: Court of Appeals of Kentucky
• Decided: May 23, 1816
• Status: Published

Opinion

OPINION of the Court, by

Judge Owsiey.

-This is an appeal from the judgment of the court below rendered for the recovery of a negro boy in an action of detinue, brought in that court by the appellee against the appellant. The errors assigned are — 1st, That the declaration is defective. 2nd, The court erred in the instructions given to the jury, as stated in the bill of exceptions filed.

The declaration contains but one count, and that is upon a special bailment of the negro by the appellee to the appellant, and the first assignment of error is made upon the supposition that a special request for a return of the negro should have been averred in the declaration.

That such averment was not necessary, we suppose was in effect settled by this court in the case of Tunstall vs. M’Cleland (1 Bibb 186.) By that case it was held (and the reasons there advanced incontestably prove its correctness) that in actions of detinue no other evidence than that of the writ is necessary to prove a demand ; and if so, it clearly results that a special demand cannot be necessary to be laid in the declaration: for it would be preposterous to require a special averment of the existence of a fact, and not also require the production of evidence to prove it.

With respect to the instructions given to the jury, we are unable to perceive any possible objection to them. The appellant appears to have claimed a right to retain the negro as a pledge until he should he repaid the money advanced by him for the intestate of the appellee. But in that point of view, the court unquestionably did right in instructing the jury that if the boy was delivered to the appellant on a loan, and that he afterwards advanced his money withqut any special contract between him and the intestate, that he had no right to retain the boy until his money was repaid.

Judgment aflmned, &c.