
    CASE 24 — PETITION ORDINARY
    JANUARY 12.
    Commonwealth, for use of Young, vs. Peters, &c.
    APPEAL PROM WOODPORD CIRCUIT COURT.
    1. A judgment on demurrer, dismissing plaintiff’s petition, is virtually a judgment against cause of action, and must be considered a final judgment, and an appeal may be taken to reverse it.
    2. "When a constable has authority to execute the process of the court having original jurisdiction of the amount of a debt placed in his hands for collection, the sureties in his official bond are liable for the amount when collected by him, which, in this case, was seventy-five dollars. (Arnold vs. Sommers, 3 Bush, 565.)
    H. C. McLeod, For Appellant,
    CITED—
    14 B. Mon., 29; Harris vs. Teal.
    
    1 Metcalfe, 411; Lane vs. Casey.
    
    3 Metcalfe, 87; Fenwick vs. Phillips.
    
    
      Revised Statutes, section 2, article 4, 'chapter 20.
    
      Civil Code, section 33, act of Feb., 1856, 1 Stanton, 259.
    Porter & Greathouse, For Appellees,
    CITED—
    14 B. Mon., 30, 31; Commonwealth, for use of Harris, vs. Teal.
    
    17 B. Mon., 334; Masterson vs. Hagan.
    
    2 Met., 128; Lytle vs. Lytle.
    
   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. Porter 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.  