Jones v. Kenny

3 Ky. 96

• Court: Court of Appeals of Kentucky
• Decided: May 2, 1807
• Status: Published

Opinion

Opinion of the Court. — In this case amotion was made in the Bourbon circuit court by James Kenny against Isaac Clinkenbeard, to quash an execütion and rep\evy bond taken upon it for the costs recovered against him by the said Clinkenbeard, in a suit in chancery , wherein Kenny was complainant and Clinkenbeard defendant, so far as the said execution and replevy bond contained improper charges or Ihomas Jones, surveyor of Bourbon county, who had executed the order of sur-ye -n c]ianCery cause. The circuit court ordered . J the execution and replevy bond to be corrected as to the sum of 1.2 17 0 3-4 ; because the said surveyor had c^arged his fees in tobacco at the rate of 1 1-2d. per pound ; when he ought to have charged the tobacco at id. only per poundi>; and because he had charged ⅜ 4 ^01 referring to and laying down four springs, when that court were of opinion S 1 25 was an adequate compensation ; and the circuit court ordered the said Thomas Jones to Pay the costs occasioned by the correction of those charges, and the costs of the motion,

The first, second and fourth error s assigned, are, m substance, the same, and may well be considered together. They allege that1 the circuit court erred in cor-fecting thé surveyor’s charge bf 1 1-2d. per pound for Ihe tobacco, and in correcting the charge of % 4 for referring to and laying down the foiir springs.

i Sef. 1792* 3°> § J> ?•

This court, from a careful examination and edmpari-son of the acts of Virginia of Í783 and 1787, and the act bf Kentucky of Í 792 (a), regulating the manner of charge ing and collecting officers’ fees, is of opinion* that surveyor’s fees, áfter thé passage of the last mentioned act, could be charged at the rate of one penny only per pound for the tobacco therein named, and that the circuit court on that point did not err;

The law, at the time the surveying wás done, allowed ho specified fee or charge for referring to and laying down the four springs; The surveyor therefore could only be authorised to make a reasonable charge. If he made an unreasonable one, as his fee-bill was required by law to be endorsed on the plat filed in the cause, whereby the court had the means of judging of the propriety of the charge, by inspection of the plat, it would Seem right that the court should have the power of reducing thé chargé to what would be reasonable;

- The third error assigned, is, that the court erred in ordering the surveyor to pay the costs, he not being legally before the court;

The record states that the motion was made “ in the presence of Thomas Jones, the surveyor.” But he was no party to the motion, and had not been by any legal means brought before the court* and therefore the court had no power to order him to pay the costs of the motion, which was a proceeding merely between Kenny and Glinkenbeard. — ‘-—Judgment reversed.