|Appeal from Circuit Court, Clay County|
|Ridener Vs. Rogers|
Court of Appeals of Kentucky.
Jul. 6, 1846.
JUDGE BRECK delivered the Opinion of the Court.
The case stated.
THE Clay County Court, on motion of Rogers, a county creditor, rendered a judgment in his favor for fifty-one dollars against Ridener, &c., sureties of William Herd, former Sheriff of said county, and they have appealed to this Court.
The objection that the motion was made in the name of Rogers, and not in the name of the Commonwealth, cannot be sustained. The fourth section of the act of 1797, (Stat. Law, 1115,) authorizes the motion, we think, in the name of the county creditor.
A county creditor can maintain a motion in his own name against a county collector or his sureties for failure to pay a county claim.
In answer to the second objection, we are of opinion the motion was properly made against the sureties without joining the Sheriff. The proper construction of the section of the act referred to, gives the motion against the Sheriff or his sureties, but not against the Sheriff and his sureties jointly.
Such motion cannot be maintained against both him and his sureties, but against either. It satisfactorily appears that the claims of Rogers for $51 were allowed by the Court in November, 1839, to be paid out of the levy, then levied, and to be collected in 1840. The objection that the record does not show that Herd who executed bond as Sheriff, with the plaintiffs in error as his sureties, on the 7th September, 1840, had any thing to do with the collection of the levy laid in 1839, is satisfactorily and conclusively answered by the condition and recitals in the bond. The condition is express that he collect the levy laid in November, 1839, and pay it over to such person or persons as are entitled to the same by law. The receipt of the Commissioner's books from the Clerk for that purpose is also acknowledged.
Finally, we perceive no reason for disturbing the judgment, and it is, therefore, affirmed with damages.
Goodloe for plaintiffs: B. & A. Monroe for defendant.
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