Bottom v. Caldwell's Trustee

3 Ky. Op. 634, 1868 Ky. LEXIS 280

• Court: Court of Appeals of Kentucky
• Decided: June 15, 1868
• Status: Published

Opinion

Opinion of the Court by

Judge Robertson:

The statute does not expressly require the bond to be executed to the superintendent, but only to be payable to him. The bond to the commonwealth for securing payment to the person entitled to receive it is virtually a bond to that person; and is therefore a good statutory bond in substance and effect.

But, if technically not good as a statutory obligation, still, being given to the commonwealth for fulfilling the prescribed trust and executed voluntarily, it is enforcible as a good common law bond.

And, although the petition did not explicitly aver an order by the county court, to pay to the plaintiff, yet, by law, he was entitled to payment, and, under the general .averment of demand and refusal, proof by the exhibit of the orders as made by the county court on Botom to pay over the fund' to his successor entitled the latter to maintain this action in the name of the commonwealth as the only obligee in the bond, and sustains the judgment as rendered.

J. B. & P. B. Thompson, for appellant. Durham, Jacobs, for appellee.

Wherefore the judgment is affirmed.