The complaint is insufficient to support the judgment. It shows no injury whatever, and no cause for a suit upon the defendant's bond. It does not even allege a trespass, because it fails to aver that the injury was committed vi et armis, et contra pacem. It also fails to show any injury or wrong done to the property. (3 Stephen's Nisi Prius, 2639.)
JUDGES: Terry, C. J., delivered the opinion of the Court. Field, J., and Burnett, J., concurring.
OPINION
TERRY, Judge
The complaint does not state facts sufficient to constitute a cause of action.
The plaintiff sets out that Clark, who was Sheriff of Calaveras, under an execution against plaintiff J. Kendall, levied on and sold certain property, which was the homestead of the plaintiff, and claims damages in two thousand dollars.
From the complaint itself it is clear that no damage has or can result from such sale. If the property sold was a homestead, the Sheriff's deed conveyed nothing; the purchaser at such sale could acquire no right to the property, and the plaintiff suffer no injury.
Judgment reversed.