Webb v. Hall , 1868 Ky. LEXIS 499 ( 1868 )

OPINION OE THE CoüRT BY

JuDGE WILLIAMS :

Tbis was a judgment'by default, at tbe suit of tbe Oommonwealtb for tbe use of Hall & Sutton, against tbe appellant Webb as marshal of Owensboro and bis securities on bis official bond.

Tbe special statutes relating to tbis office required tbat tbe marshal should execute in tbe county court a bond to tbe same effect as constables are required to execute. Tbis bond recites tbat “David Webb as Marshal” and tbe other named persons as “his sureties do hereby covenant11 “tbat tbe said David Webb as Constable of Daviess county shall well and truly,” &c. It is manifest upon tbe face of tbis bond tbat tbe county court used tbe form of a constable’s bond and, though it is set out in tbe first recital tbat Webb as Marshal and bis securities execute it, yet tbe covenant tbat Webb as constable was by oversight not altered to conform to tbe actual object, tbe obligatory covenants are required, by law, to be tbe same, it may well be questioned whether, upon a direct issue involving tbe sureties, tbis bond ought not to be held as a substantial compliance, but when tbe petition avers be did enter upon tbe discharge of bis duties as marshal, and collected and failed to pay over tbe plaintiff’s money as such, and tbis is not denied, tbe objection to tbis informality of tbe bond, for tbe first time made in tbis court, comes too late.

As tbe marshal bad an unquestionable right to collect, within tbe limits of tbe town, if not within' tbe entire county, which is not now necessary to decide, we cannot say upon tbe averments of tbis petition tbat said debtors did not reside or bad property within tbe town leviable, and therefore, upon default we cannot say the petition does not show a canse of action.

Bay & Hardin, for appellant. Sweeney & Stuart, for appellee.

Wherefore, the judgment is affirmed without damages, no supercedeas appearing.