Meadows v. Commonwealth ex rel. Estill county court , 27 Ky. 14 ( 1830 )

Judge Underwood,

delivered the opinion of the court.

This was a proceeding- in the county court of Estill, against Will. Meadows, as sheriff, and others as his sureties, to recover from him and them, the amount of the county levies, collected by the said Meadows, and not accounted for.

The court rendered judgment in the name of the commonwealth, for the use of the county court and county of Estill, against the plaintiffs in error for $313 804 cents, and costs of the motion, to reverse which, this writ of error is prosecuted. There are several errors, for either of which, the judgment must he re» versed:

1st. The sheriff’s bond is not exhibited, nor is there any other evidence to show that Harris and others, who were proceeded against as sureties for the sheriff were such. If they were liable to the motion, the cause of action, has not been made out against them, but they were not liable. See II Dig. 856, for the statute which gives the remedy against the sheriff or collector of the county levies alone, and see the case of Hardwick vs. the Justices of Montgomery county, I Bibb, 256, in which it is decided, that a collector and his sureties, cannot be proceeded against jointly.

2d. We know of no statute which authorizes proceedings, in the name of the commonwealth, in cases like this. By the act of 1799, II Dig. 257, the sheriff is made the collectoi of the county levies, and he is required to execute bond to his county court. The proceeding, if founded upon this bond, may be an action against the sureties, as well as the principal. If a mo-tí'on is adopted, it should be against the sheriff or- collector alone, not embracing the sureties; but then the motion must be made in the name of the county, and notin the name of the commonwealth. See Hobbs vs. Commonwealth, III Bibb, 322.

Judgment against collec- *or>shouW wealth bank notes-. Tyrner. for plaintiffs.

3d. The county levies are made payable- by law, in notes on the bank of the commonwealth of h caitucky. Under the act of January 25th, 1827, judgment should be rendered for commonwealth s bank notes.

The judgment is-reversed and set aside.