Fryer's Administrator v. Fryer

36 Ky. 54, 6 Dana 54, 1837 Ky. LEXIS 139

• Court: Court of Appeals of Kentucky
• Decided: November 3, 1837
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.

This was an action of replevin for a slave, in which, on the calling of the cause in the Circuit Court, the Judge quashed the writ, and rendered judgment for a restitution of the slave, because the sheriff, who had executed the writ, had failed to assess the value, or to report the assessed value of the slave, as required by the third section of an act of assembly of 1830, (2 Slat. Law, 1361.)

In rendering such a judgment; for such a cause, the Circuit Court, in our opinion, erred. The third section of the act of 1830, was designed to apply, as we think, only to an action of replevin by a stranger, for property taken under execution; and is, moreover, merely directory to the officer, for the security, chiefly, of the execution creditor, who may make the officer accountable for any damage which may arise from a refusal or failure to •comply with the direction of the statute.

But surely the single fact, that no assessment was made, or, if made, reported, should not, in any case, be a sufficient reason for quashing the writ. Had this action been for property taken under an execution against a stranger to the writ, we are by no means sure that even the official return should have been quashed. But even that much was improper in,this case, as the third section of the act does not apply to it.

Judgment reversed, and cause remanded for a new trial.