Craig v. Graves

Court of Appeals of Kentucky

Craig v. Graves

27 Ky. 603, 4 J.J. Marsh. 603, 1830 Ky. LEXIS 337

DecidedOctober 19, 1830

StatusPublished

This text of 27 Ky. 603 (Craig v. Graves) 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

Craig v. Graves, 27 Ky. 603, 4 J.J. Marsh. 603, 1830 Ky. LEXIS 337 (Ky. Ct. App. 1830).

Pincite

Opinion

Judge Underwood,

delivered the opinion of the court.

The merits of the controversy have been correctly decided by the circuit court. It is an attempt on the part of Craig, to obtain a credit for money paid the deputy sheriff, at a time when he had no lawful authority to receive it, and when by receiving it, he incurred no obligation to account for it to-[604]*604Graves. This court has often decided, that unless the sheriff has an execution in his hands in full force, that a payment made to him by the defendant in the execution, cannot be regarded as an official transaction by which the defendant is exonerated from his liability to the plaintiff.

Unless the sheriff has an execution in his hands in. full force, a payment njade to him hy defendant in the execution, will not exonerate the defendant from his liability to the plaintiff. Triplett, for plaintiff-; Marshall, for defendant.

It was error however, to decree in this case, in favor of Graves the amount of the note executed to him by Craig. All that the chancellor should have done, was to operate in ran upon the mortgaged property. The common law tribunal alone should givejudgment for the amount of (he note, and from the pleadings it seems, that tribunal has been resorted to for that purpose. See Martin vs. Wades’ executors, V Mon. 78.

It was also error, to leave the commissioner to judge of the default of Craig in paying the money. The decree should conform to the directions given in the, case of Jones vs. Froman, VI Mon. 129.

. Decree reversed with cost?, and the cause remanded for proceedings in conformity to this opinion.

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Judge Underwood,

delivered the opinion of the court.

The merits of the controversy have been correctly decided by the circuit court. It is an attempt on the part of Craig, to obtain a credit for money paid the deputy sheriff, at a time when he had no lawful authority to receive it, and when by receiving it, he incurred no obligation to account for it to-[604]*604Graves. This court has often decided, that unless the sheriff has an execution in his hands in full force, that a payment made to him by the defendant in the execution, cannot be regarded as an official transaction by which the defendant is exonerated from his liability to the plaintiff.

Unless the sheriff has an execution in his hands in. full force, a payment njade to him hy defendant in the execution, will not exonerate the defendant from his liability to the plaintiff. Triplett, for plaintiff-; Marshall, for defendant.

It was error however, to decree in this case, in favor of Graves the amount of the note executed to him by Craig. All that the chancellor should have done, was to operate in ran upon the mortgaged property. The common law tribunal alone should givejudgment for the amount of (he note, and from the pleadings it seems, that tribunal has been resorted to for that purpose. See Martin vs. Wades’ executors, V Mon. 78.

It was also error, to leave the commissioner to judge of the default of Craig in paying the money. The decree should conform to the directions given in the, case of Jones vs. Froman, VI Mon. 129.

. Decree reversed with cost?, and the cause remanded for proceedings in conformity to this opinion.

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Bluebook (online)

27 Ky. 603, 4 J.J. Marsh. 603, 1830 Ky. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/craig-v-graves-kyctapp-1830.