4 Dana 471
Court of Appeals of Kentucky.
The Commonwealth, for Clay County, v. Brashears.
Oct. 15, 1836.
ACTION: Reversed


The justices of the county court, as relators may maintain an action in the name of the commonwealth, for the benefit of the county, upon the bond of the sheriff, for the collection of the county levy.

FROM THE CIRCUIT COURT FOR PERRY COUNTY.

JUDGE EWING delivered the opinion of the Court.
The Commonwealth of Kentucky, by Elisha Bowman and others--the only acting Justices of Clay County Court, as relators, for the benefit of said county, brought an action of debt against Robert S. Brashears, as one of the sureties of Thomas McJilton, on his official bond for the collection of the county levies of Clay county--for his failure to collect and pay over to the county creditors, the several sums levied for them, in the year 1819; and also, for his failure to pay over to the Justices the sums levied in favor of the county, as well as all balances, after the payment of the county creditors.

The justices of a county court, as relators, may maintain an action, in the name of the commonwealth, for the benefit of the county, upon the bond of the sheriff, for the collection of the county levy. A county, creditor (according to the case of Kennet v. Fugate, 1 Mon., 1), can not. The defendant demurred to the declaration; which was sustained by the Court, and the case had been brought to this Court.

The only question to be decided in the case, is--have the County Court Justices, as relators, a right to maintain this action against the defendant? The act of 1797 (Stat. Laws, 1116), authorized the County Courts to take bonds from the sheriffs, or collectors of the levies, payable to the County Court Justices, for the collection and faithful payment of the levies in the manner directed by law. And the act of 1810 (Stat. Laws, 1250, 8th section), provides, "that the bonds of guardians, of executors and of administrators, and others who by law are required to execute a bond to the County Court Justices, shall be made payable to the Commonwealth of Kentucky, instead of the Justices, and may be proceeded on as heretofore; except that suits thereon shall be in the name of the Commonwealth instead of the Justices; and an action in one case, on such bond, shall in nowise abate or bar an action thereon for another cause." Now, it can not be doubted, that the County Court Justices, had a common law right to maintain an action, in their own names, on the bond executed to themselves, under the statute of 1797, for an breach of the condition of said bond.

If so, the bond may be proceeded on as heretofore, except that suits thereon shall be in the name of the Commonwealth, by the act of 1810. The proceeding by motion given by the statute of 1797, is a summary mode of proceeding, cumulative of the common law remedy, which can not be construed to abridge or abolish the common law remedy, or in any manner to restrict the obligees in their common law right of action upon the bond. And, as the bond, by the latter statute, may be proceeded on as heretofore, only using the name of the Commonwealth, the latter statute may be fairly construed to give a direct legislative authority to the County Court Justices to use her name in the prosecution of suits upon the bond.

If it be admitted, that the doctrine settled by this Court in the case of the Commonwealth, for the use of Kennet, against Fugate (1 Monroe, 2) is correct, the principle there settled, is not at all in conflict, with the principle settled in this case. There it was settled, that a county creditor, as relator had no authority, conferred by the statute, to use the name of the Commonwealth in a suit on the bond; and that, according to the principles of the common law, none but parties or privies can maintain an action in their own names; nor can any one use the names of parties or privies to a contract, but by their authority. And as Kennet, the relator, was not party or privy, and no statute authorized him to sue in the name of the Commonwealth, he could not maintain the action as relator.

Here the County Court Justices were parties to the bond under the former statute, and, as such, according to the principle settled in the foregoing case, could have maintained the action; and the latter statute gives the right to proceed on the bond, in the name of the Commonwealth.

It is, therefore, the opinion of the Court, that the judgment of the Circuit Court be reversed, and the cause reamnded, that the demurrer may be overruled, and further proceedings had, not inconsistent with this opinion.

Ky.App. 1836.

The Commonwealth, for Clay County, v.

Brashears.

34 Ky. 471, 4 Dana 471, 1836 WL 2087



     

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