Fisher v. Davis

16 Ky. 132, 1 Litt. Sel. Cas. 132, 1811 Ky. LEXIS 10

• Court: Court of Appeals of Kentucky
• Decided: January 13, 1811
• Status: Published

Opinion

Opinion of

the Court.

THIS was an action on the case brought against the Sheriff, for having taken as security in a replevin bond, a person who is averred to have been an infant at the time of the execution of the bond, and insufficient to be taken as security.

On a demurrer to the declaration, the court below gave judgment for the defendant, to which the Plaintiff has prosecuted this writ of error.

There is no statutory provision which gives an action against the Sheriff, for taking insufficient security in a replevin bond. The action if maintainable, must be supported on the principles of the common law; the insufficiency of the security cannot per se constitute a cause action. The party complaining of the act of the sheriff, ought also to shew that he had sustained some damage by it. To do this, it is necessary to shew the inability of the principal to pay, as well as that of the security, for it is obvious that if the principal is solvent and his estate accessible by execution, the creditor can sustain no inconvenience from the insufficiency of the security.

In this case the declaration contains no averment that the principal was insolvent or unable to pay, and in this respect we think it substantially defective. It becomes therefore, unnecessary to enquire into the other points made in the cause.

Judgment affirmed.