Commonwealth ex rel. Young v. Peters

Court of Appeals of Kentucky

Commonwealth ex rel. Young v. Peters

67 Ky. 403, 4 Bush 403, 1868 Ky. LEXIS 147

CourtCourt of Appeals of Kentucky

DecidedJanuary 12, 1868

StatusPublished

Cited by1 cases

This text of 67 Ky. 403 (Commonwealth ex rel. Young v. Peters) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth ex rel. Young v. Peters, 67 Ky. 403, 4 Bush 403, 1868 Ky. LEXIS 147 (Ky. Ct. App. 1868).

Pincite

Opinion

JUDGE ROBERTSON

delivered the opinion op the court:

This action was brought in the Woodford quarterly court by the Commonwealth for the use of ’Madison Young, against Leonidas B. Peters, and Thomas P. [404]*404Porter and John II. Jesse, his sureties, for an alleged breach of Peters’ official bond as constable of Woodford county, by failing to pay to the relator seventy-five dollars which Peters, in his official capacity, had undertaken to collect, and did afterwards collect on a note for fifty-three dollars and forty-three cents, executed to said Young by Thos. K. Layton. On an appeal from a judgment against the principal and sureties, the circuit court sustained a demurrer to the petition, and this appeal to this court seeks a reversal of that judgment, which, as it virtually adjudged against any cause of action, must be considered a final judgment in the case.

The only plausible ground of demurrer is the assumption that the sureties are not liable, because, as asserted, the collection of the money was not an official act by their principal; but we think that it was official.

The condition in the bond requiring the constable to collect “ all notes” put into his hands for collection, has been, so far as the sureties are bound, construed by this court in the case of the Commonwealth, for Arnold, vs. Sommers (3 Bush, 555), to mean such, and only such, as he has legal authority to collect as constable.

In this case the constable had authority to execute the process of the court having original jurisdiction of the amount to be collected; and, therefore, his undertaking to collect it, and his actual collection of it, were both within his official sphere; and his sureties, being bound for his official fidelity, seem to be liable for his alleged failure to pay to Young the money he collected for him; consequently, the circuit court erred in sustaining the demurrer.

Wherefore, the judgment is reversed, and the cause remanded for further 'proceedings consistent herewith.

Judge Peters did not sit in this case.

Free access — add to your briefcase to read the full text and ask questions with AI

JUDGE ROBERTSON

delivered the opinion op the court:

This action was brought in the Woodford quarterly court by the Commonwealth for the use of ’Madison Young, against Leonidas B. Peters, and Thomas P. [404]*404Porter and John II. Jesse, his sureties, for an alleged breach of Peters’ official bond as constable of Woodford county, by failing to pay to the relator seventy-five dollars which Peters, in his official capacity, had undertaken to collect, and did afterwards collect on a note for fifty-three dollars and forty-three cents, executed to said Young by Thos. K. Layton. On an appeal from a judgment against the principal and sureties, the circuit court sustained a demurrer to the petition, and this appeal to this court seeks a reversal of that judgment, which, as it virtually adjudged against any cause of action, must be considered a final judgment in the case.

The only plausible ground of demurrer is the assumption that the sureties are not liable, because, as asserted, the collection of the money was not an official act by their principal; but we think that it was official.

The condition in the bond requiring the constable to collect “ all notes” put into his hands for collection, has been, so far as the sureties are bound, construed by this court in the case of the Commonwealth, for Arnold, vs. Sommers (3 Bush, 555), to mean such, and only such, as he has legal authority to collect as constable.

In this case the constable had authority to execute the process of the court having original jurisdiction of the amount to be collected; and, therefore, his undertaking to collect it, and his actual collection of it, were both within his official sphere; and his sureties, being bound for his official fidelity, seem to be liable for his alleged failure to pay to Young the money he collected for him; consequently, the circuit court erred in sustaining the demurrer.

Wherefore, the judgment is reversed, and the cause remanded for further 'proceedings consistent herewith.

Judge Peters did not sit in this case.

Cite This Page — Counsel Stack

Bluebook (online)

67 Ky. 403, 4 Bush 403, 1868 Ky. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-young-v-peters-kyctapp-1868.

Opinion

Related

Cite This Page — Counsel Stack