Spradlin v. Kendall

6 Ky. Op. 439, 1873 Ky. LEXIS 203

• Court: Court of Appeals of Kentucky
• Decided: February 7, 1873
• Status: Published

Opinion

OPINION by

Judge Hardin :

The covenant of the marshal and his sureties that he would perform his official duties which, in this case, were those of a constable, seem to be sufficiently alleged in the original petition, as well as a breach of that covenant. There is an apparent defect of parties, as the averments' of the petition only impart that the plaintiff Spradlin was the equitable, and not the legal holder of the executions against Dory and others. But this defect was not reached by the general demurrer, and was not made the ground of specific objection, and it was error to sustain the general demurrer for a special cause, not assigned. (Civil Code, Secs. 120-121.)

Wherefore, that being the only apparent defect in the petition, especially as amended, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.