49 Ky. 120 | Ky. Ct. App. | 1849
delivered the opinion of the Court.
This was an action of trespass, quare clausum fregit, by Harris against Hill, for entering the plaintiff’s close with wagons, &c., and taking away a large number of bricks of the plaintiff. The defendant claimed as purchaser, under an execution against Harris in the hands of a Constable. And the only question presented is, whether a levy upon three thousand bricks, in a kiln containing a much larger number, without either separating the bricks levied on, or otherwise designating them, than as three thousand bricks on the lot of the defendant, is sufficient to authorize a sale, and whether a sale made in the same general terms is sufficient to authorize a subsequent selection and delivery of bricks by the officer to the purchaser.
It certainly was not necessary that the officer should have taken from the kiln the designated number of bricks, at the time of the levy. It was more convenient and better for all parties, that they should remain in the kiln, where they were reasonably safe from injury, than that they should either have been placed near it in one or more piles, or should have been removed from the lot. In the former case, they might have been liable to depredation, and might have been injm-ed in the act of removal. In the latter case, besides being sub-' ject to injury in being removed, it might become necessary, after the sale, to return a part of them to the place from which they were taken. It does not appear
Then the real question in this case is, not as to the manner of making the levy, but as to the manner of describing the thing-or things levied on. And this, we think, depends upon the construction to be given to the terms used in describing the levy. The same reasons which dispense with the actual seizure of each individual brick intended to be sold, dispense also with a particular or separate description of each in making or stating the levy. The comparative insignificance of the individuals, separately considered, and their general similarity, authorize the use of general words in discribing them. If a part only of a mass of bricks is to be designated, the part might be designated as one half or as as one fourth or as a certain number, or as a certain number on a particular side or in a particular part of the mass, or as a certain number of hard or of soft, or of good or of bad bricks. The owner might undoubtedly sell a portion of the mass by either of these modes of description, and even if the purchaser should become thereby only a tenant in common, he could not be sued in trespass for taking his portion according to the des
As an officer, intending to levy upon three thousand bricks in a kiln of eighty thousand, (as in this instance,) could not properly remove all of the inferior bricks and take those of the best quality, wherever they might be found, but could only take the number in the usual manner, therefore, his return, that he had levied on the three thousand bricks, without further designation, should be understood as designating three thousand to be taken indiscriminately from that part of the kiln which is open, or if it be not already opened, to be taken indiscriminately after opening it in the usual manner. So understood, we think that the levy was sufficiently certain to authorize the sale, and that the sale in the same manner authorized the officer to deliver, and the purchaser to receive and carry away, the designated number of bricks taken in the mode above referred to. And this mode having, as appears, been substantially pursued in the present case, we are of opinion that the defence was made out, and that the Court to which the law and facts were submitted decided erroneously in rendering judgment for the plaintiff.
Wherefore, the judgment is reversed and the cause remanded for a new trial.