Humphreys v. Brown

4 Ky. 460

• Court: Court of Appeals of Kentucky
• Decided: June 13, 1809
• Status: Published

Opinion

OPINION of the Court, by

Judge BoYle.

— To an action of covenant, the appellant, who was defendant in the court below, pleaded covenants performed, on which issue was regularly taken by the parties. Having pleaded also a second plea, and a special replication being made thereto by the plaintiff, the defendant demurred to the replication, but the court overruled the demurrer, and gave judgment for the plaintiff for his damage, to ascertain which a writ of enquiry was awarded and executed ; and for the damages found by the jury, a final judgment was rendered by the court. This was clearly erroneous; a jury should have been em-paunelled and sworn to try the issue joined upon the plea of covenants performed ; and no final judgment ought to have been rendered for the plaintiff, unless that issue had been decided against the defendant.

Judgment reversed.