
    Marengo County v. Lyles.
    
      Action of Assumpsit against a County.
    
    1. Action of assumpsit against a county; when not maintainable. — An action of assumpsit can not be maintained against a county, to recover the amount paid for the hire of a servant to keep up the fires in the county jail, and to supply it with water.
    2. When mandamus the proper remedy. — When the sheriff or jailor seeks to be reimbursed for money paid for the hire of a servant to keep up the fires in the county jail, and to supply the jail with water, his claim must be presented to the court of county commissioners, and upon their failure to allow it, his remedy is by mandamus, to compel said, court to make the proper appropriation.
    Appeal from the Circuit Court of Marengo.
    Tried before the Hon. William E. Clarice.
    This was an action of assumpsit brought by N. P. Lyles against Marengo county, and counted upon the common counts. The plaintiff’s claim was based on his-alleged right to be reimbursed for money which he had paid for the hire of a boy to pump water in the jail, and to keep up the fires therein during the winter months. By agreement the cause was submitted to the court without the intervention of a jury; and on the hearing thereof judgment was rendered for the plaintiff. Defendant appeals, and assigns this judgment as error.
    John 0. Anderson, for appellants.
    George W. Taylor, contra.
    
   PER CURIAM.

It is the opinion of the court that the plaintiff has misconceived his remedy. He should first have presented his claim to the court of county commissioners, asking for the payment thereof; and upon their refusal to allow his said claim, he should then have asked for a mandamus, directed to said court of county commissioners, commanding them to make such appropriation as would be just and proper in the premises.

Reversed and rendered.  