Governor v. Throckmorton

6 Ky. 243, 3 Bibb 243, 1813 Ky. LEXIS 109

• Court: Court of Appeals of Kentucky
• Decided: December 9, 1813
• Status: Published

Opinion

OPINION of the Court, by

Judge Owsley.

This suit is brought on a bond executed by the appellees, under the 7th section of the act of 1797, concerning public roads, authorising the county caurt of the county where a bridge or causeway is necessary, to contract for the building such bridge or causeway, ahd levy the charge thereof in the county levy ; and requiring bond and security to be given by the undertaker, payable to the governor and his successors, for the use of the county, &c. A judgment was obtained in the court below in favor of the appellees upon a demurrer to the plaintiff’s declaration. The bond was made payable to the governor and his successors. Suit was brought in the name of Charles Scott, governor of Kentucky, and the declaration, although it appears tobe for the benefit of Franklin county, contains no averment for the use of what county the bond was taken. It was contended in argument that the bond is invalid, because it contains no description to what governor it is made payable. To this it need only be answered that the law does not require the bond to contain any other description to whom payable, than to the governor. The bond in that respect is in the words of the law, and should not for a defect of mere precise description be deemed void. The declaration, however, we are of opinion, is defective. It contains no averment shewing that the bond was executed for the use or benefit of Franklin county ; andas the suit appears to have been broughtfor the benefit of that county, the declaration should by proper averments shew that the bond was given lor the use of Franklin county. The court below, therefore, decided correctly in sustaining the appellees’ demurrer,

J udgment affirmed.