
    Hobbs vs. the Commonwealth.
    
      April 23.
    
    A motion a-gainft a delinquent collector of the county levy ihould be in the name of the county, and not the common» wealth.
    
    Perfon who was a creditor of the county when the levy was laid may fuftain a motion but not a fubfe* quent creditor*
   OPINION of the Court, by

Ch. J. Boyle.

This is a writ of error to a judgment of the county court of Nelson, in favor Of the Commonwealth against the plaintiff in error, late sheriff of that county, for the amount of a balance of the county levy, due from him to the county.

The objection taken in the court below, thatthe motion should have been made in the name of Robert Nicholson, to whom the county court at their November term, 1811, made an order directing the plaintiff in error to pay a part of the sum due from him, was, we apprehend, correctly overruled by the court. It is only such persons as were creditors of the county at the time When the levy was laid, who can, under the “ act concerning titheables,” &c. passed in 1797, sustain a motion against the sheriff ; and it does not appear that Nicholson was a creditor when the levy was laid to recover a part of which this motion was made : for the order directing the plaintiff in error to make payment to him was made long afterwards.

We are, however, of opinion that the proceedings and judgment ought to haved^een in the name of the county, and not in the name of the commonwealth : for it is the county, and not the Commonwealth that has a right to the thing which was demanded.

On this ground, therefore, the proceedings and judgment are erroneous and must be reversed.  