Owings v. Owings , 26 Ky. 590 ( 1830 )

Judge Underwood

delivered (ho opinion of the court.

One question presented is decisive o? the controversy. Where a surety is compelled by execution to pay the demand against his principal in notes on the bank of the commonwealth, (the sheriff having been instructed by endorsement to receive them in payment,) can the surety by motion against his principal recover a judgment for the amount payable in notes on .said bank? It is our opinion it cannot be legally done. There is no express contract in such a case to pay the amount in notes on the bank of the commonwealth. Bank nates are not money, and when they are paid and advanced for the use of other by legal coercion, the law implies that the person for whose use they are so paid shall pay their value and not return the amount specifically. There is consequently no such contract, as is provided for by the net of the 5th January, 1824.

Denny, for plaintiff; Crittenden, for*dcfendant.

The judgment is therefore reversed, and the cause remanded, with directions to dismiss the motion without prejudice. The plaintiff in error must recover his costs.