Appeal from Circuit Court, Clay County
McJilton Vs. Commonwealth
ACTION: Reversed


Court of Appeals of Kentucky.
McJilton, &c.
v.
The Commonwealth.
Apr. 15, 1831.

An action will not lie in the name of the state, for the use of a county creditor, on the bond given for the collection of a county levy.

CHIEF JUSTICE ROBERTSON, delivered the opinion of the court.
This is a writ of error to reverse a judgment against McJilton, as collector of the county levy for Clay county, and also against one of his sureties, rendered in favor of the Commonwealth for Baker and Bates, as agents for the county court of said county, in an action of debt on the collector's bond, in which several sureties were bound with the collector.

The judgment can not be sustained.

1st. As there was no legal privity between the relators in their own right, and the Commonwealth, they could not if they had even been creditors of the county, maintain an action of debt. The act of assembly, gives to creditors a motion in the name of the Commonwealth. Without that act, creditors could not, as relators, have maintained any suit on the bond; and therefore, their only remedy is in a motion. Action can not be maintained in the name of the commonwealth, for the use of a county creditor, on the bond for the collection of the county levy.

Motion in the county court is the remedy.
If the suit be considered as brought for the benefit of the county, the agents of the county court, can not be relators.

Wherefore, it is not necessary now, to decide whether there is such a privity between the county and Commonwealth, in such a case as this, as would enable the county or its court, to sue as relator on the bond, as a common law obligation.
Where suit is brought against all of the obligors in a bond for collection of the county levy, it is error to render judgment against some of them without disposing of the case as to others.

The suit was brought against all the obligors; and it was therefore, erroneous to render judgment against some of them, without disposing of the case as to the others. Wherefore, the judgment is reversed, and the cause remanded, with instructions to sustain the demurrer to the declaration.

Owsley, for plaintiffs.



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