Ewing v. Thompson, 2 Ky. 128

Ewing v. Thompson

2 Ky. 128 | Ky. Ct. App. | 1802

It appears in this suit that a common order and judgment has been taken against Morris, the defendant in the court below, and against Ewing as sheriff, the return on the writ being “ executed and escaped.” The court is of opinion that those proceedings against Ewing were not authorized by law, and may be highly unjust; because by law sheriffs are only culpable when escapes *129are -willfully or carelessly permitted by them, and such facts must be ascertained by a jury in a special action on the case. And it further appears that this suit is founded on a bond for foreign currency, and the value thereof in the current money of this state is not specified in the writ, which the court is of opinion was indispensable, this being a judgment by default. Therefore, it is considered by the court that the judgment aforesaid be reversed and set aside, and that the plaintiff recover of the defendant his costs in this behalf expended, which is ordered to be certified to the said court.