May v. Johnston

5 Ky. 220

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1810
• Status: Published

Opinion

OPINION of the Court, by

Judge Clark.

This was amotion for a judgment in the Mercer circuit court, by William May, against Margaret Johnston, adminis-tratrix ©f Alexander Robertson, deceased, on the fallowing receipt, executed by the deceased in his lifetime : “ February 27th, 1790, received of John Rodgers the within fee bills, which I am to collect and account for according to law. Alexander Robertson.”

It does not appear from the fee bills for what services they were due : but the motion is made by May, as surveyor of Jefferson county. 1 he inferior court gave judgment in favor of the defendant, to which May pro-, secutes this writ of error.

On the trial of this cause it was agreed that the plaintiff should have every benefit which he could be entitled to in anv form of action, allowing to the defendant the same latitude of defence.

It is the duty of every sheriff, to collect and account for all surveyor’s fees put into their handsTor collection, and upon failure, a remedy is given by motion. But this remedy is only given against the sheriff where the bills are such as by law he is required to collect. The receipt given by Robertson, does not state the nature of the fee bills, nor does the record afford any proof of what description they were. The circuit court, from what appeared to them, was, from the nature of the transaction, unable to say whether the receipt executed by Robertson was for fee bills which the law required him as sheriff to collect and account for. To entitle May to a judgment, it was not only necessary that this fact should have been shewn, but that the bills were his own. The receipt appears to have been given to Rogers and not to him, and so far as it affords information, we would presume the fees, were due Rogers, and not May.

To these circumstances may be added the staleness of the plaintiff’s demand, which is of more than seventeen years standing; a period from which the court might have presumed a payment. For although there is no statute which prevents an action from being brought ona bond,yet where it is ef long standing a payment may he presumed.-'Judgment affirmed, &c.