Herndon v. Mason , 27 Ky. 575 ( 1830 )

Judge Underwood,

delivered the opinion of the court.

We are of opinion, from the whole evidence, that Herndon was the principal in the note to the bank of the commonwealth, and Mason, his surety, We are, moreover, of opinion, that the motion was properly instituted, by Mason, in the Montgomery circuit court, where the judgment, in favor of the bank, was obtained; and that it was lawful to serve Herndon with a copy, in Bath; see 1st section of the act of 1812, II Dig., 1118. In rendering judgment in favor of Mason, as the surety, it was not erroneons to give judgment fof accruing interest. The said section of the act of expressly gives it.

We perceive but one error, and that is, the judgment is for $20 45 cents too much. It seems that Mason settled the execution, which issued on the replevin bond, with the cashier, who directed the execution to be returned satisfied. It does not appear that the sheriff ever levied this execution, or collected the money. He had no trouble with it, but to endorse when it came to hand, and to return it according to the plaintiff’s directions, or rather according to the directions of the cashier, the plaintiff’s authorized agent. For this service, we know •of no law which authorizes the sheriff to charge 5 per cent, on the first £100, and 2 per cent, on all above that. Yet, it seems that a commission of that amount was collected by the cashier, from Mason. He was not bound to pay it, and if he did, he has no right to charge it against his principal. He can only recover what the law compels him to pay.

For this cause alone, the judgment is reversed and set aside, and the cause remanded, with directions to ■enter judgment in favor of the ■ defendant in error, fot $572 93 cents, with -interest, at the rate of 6 per cent. , per annum-thereon,'from the 28th of March, 1829, un- - til paid, and the costs- of the motion. The plaintiff in •error must recover his costs.

■Mills and -Brown, for, plaintiff; Jionroe, for defendant.