Bell v. Allen

9 Ky. 117

• Court: Court of Appeals of Kentucky
• Decided: December 3, 1819
• Status: Published

Opinion

Judge Owsley

delivered the opinion of the court.

This was a motion made by Bell as paymaster of the 2d regiment of Kentucky militia, against Allen and Gore, deputy sheriffs, upon their undertaking to collect militia fines.

The fines appear to have been assessed in 1816, and there is admitted to be $110 56 ¼ cents yet unpaid by the sheriffs; but the amount thereof was tendered by them in notes on the Insurance Company to the paymaster, before notice of the motion.

The court below determined the tender to be legal, and gave judgment against the paymaster—and from that judgment he has appealed to this court.

In deciding upon the legality of the tender, it is material to understand correctly the extent of the obligation imposed upon the sheriffs by their undertaking to collect the fines.

And to that end, as the receipt given by them imposes no other obligation than to collect and account for the fines according to law, it is proper to advert to the act of assembly under which the assessment and collection was made.

That act will be found in the session acts of 1814, page 438, and provides that sheriffs and other collectors shall receive in payment of county levies and militia fines, notes on the bank of Kentucky and its branches, notes on the Insurance Company, and notes on the United States’ treasury; and, moreover, provides, that in making distress for the same, the sheriffs and collectors shall sell the property destrained, payable in such notes; also, that county creditors shall be bound to receive such notes from the sheriffs in payment of their respective demands.

This act, we are of opinion, is susceptible of no other construction than given to it by the court below. Every provision conduces to illustrate the general intention of its makers, not only to require county levies and militia fines to be collected in notes of the description mentioned in the act, but also to compel those who might be entitled to the amount collected, to receive these notes in payment. And whilst it is admitted, that under the constitution of the U. States no state can make any thing a lawful tender in payment of debts but gold and silver coin, it cannot be doubted that for any thing contained in that instrument any state may require either the county levies or militia fines to be assessed and payable in any manner consistent with legislative will.

C. Wickliffe for plaintiff.

The militia fines, therefore, being payable in notes on the Insurance Company, it was competent for the sheriffs to pay the same to the paymaster, and having for that purpose tendered those notes, the court did right in entering judgment in their favor.

The judgment must be affirmed with costs.