Thome v. Haley

31 Ky. 268, 1 Dana 268, 1833 Ky. LEXIS 73

• Court: Court of Appeals of Kentucky
• Decided: May 8, 1833
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.

This is a suit against a sheriff by an execution creditor, Though two , breaches are assigned — (that is, first, that the execution was not returned, and second, that the female slave levied on was not sold,) — nevertheless, if the court erred in its opinion upon either point, theiudgment against the sheriff is erroneous.

Whether property alleged to belong to a defendant in an execution, was liable to a levy or not, is a question for the jury, and an instruction that assumes the liability, is erroneous. .A deposition being admitted, when objected to, no notice or cross examination appearing in the record, is error.

There was proof tending to shew, that the slave was not the property of the defendant in the execution, and the jury had a right to decide whether she was his property, or was subject to sale under the execution against him. If she was not his property, or was not liable to sale under the execution, it was not the duty of the sheriff to sell her, and he should not be responsible for not selling her. And, therefore, the court erred in instructing the jury, peremptorily, that, if the slave was worth as much as the amount of the execution, they should find against the sheriff that amount.

The court also erred in permitting Moor’s deposition to be read, notwithstanding the reading of it was opposed. No notice for taking it appears in the record. And it does not appear that there was any cross examination or waiver of notice.

Wherefore, the judgment against the sheriff is erroneous, and must be reversed, and the cause remanded for a new trial.