
    Boyle, &c, vs Commonwealth.
    Error to the Jefferson County Court.
    Motion.
    
      Case 1.
    The ease stated.
    Motions against regimental collectors for failing to pay over moneys collected, should be in the name of the regimental paymaster.
    
      Parties. Paymasters. Sheriff. Collectors.
    
    
      Sept. 6.
   JuDeE Breck

delivered the opinion of the Court.

This was a proceeding by motion, before the County Court.of Jefferson county, in the name of the Commonwealth, by Henry Wolford, as a Regimental Paymaster, against Thomas Boyle, as Regimental Collector, and his security. The Court rendered judgment against the Collector and his security, for $2,000, the penalty of the Collector’s bond, to be discharged by the payment of $131 41; to reverse which, the defendants have brought the case to this Court.

The judgment is clearly erroneous and must be reversed, and for the following reasons:

1st. There is no proof that Wolford was Paymaster.

2ndly. The motion should have been made in the name of the Paymaster and not of the Commonwealth. The 93d section of the act of 1837, to amend the militia law, (3 Stat. Law, 418.) provides that the Collector shall be responsible for money collected by him, “in the same manner as provided for in the case of Sheriffs.”

The motion allowed by law against a regitoHnVehaif^of the regimental paymaster must be against the collector or his sureties, not against both.

in entering such galnstsheriffsor i^ctOTsf^oredit should be given for the legal commissions for collecting.

Greene for plaintiff: Clark for defendant.

The sect’on °f the same act makes it the duty of 'the Paymaster, in case the Sheriff shall fail or refuse to settle and pay over to him, to proceed by motion, in the County Court, in the same manner that moneys are re. covered by the counties against their public collectors, to collect and recover the money due from the Sheriff and his deputies, or either of them.

The proceeding by counties against defaulting Sheriffs and Collectors, was by the Justices of the County Court upon motion, and judgment was entered in the name of the Justices.against the Sheriff, Collector, or sureties, for the amount for which the Sheriff or Collector was in arrear. But the law authorized no judgment upon the proceeding by motion against the Sheriff and his sureties, or the Collector and his sureties, jointly: see Wood vs Sayre, (7 Monroe, 663,) and statutes there referred to.

3rdly. Therefore, the judgment is erroneous because it is against the Collector and his surety jointly. In the case of Wood vs Sayre, the Paymaster proceeded against the Sheriff and his sureties jointly, and upon that ground the judgment was reversed. The J ° law as applicable to Sheriffs and their sureties is also applicable to the Collector and his sureties.

4thly. The judgment is for the entire amount proved to have been collected and not paid over by the Collector, His commission should have been allowed him and deducted. See Stith vs Lansdale, (2 J. J. Marshall, 152,) and other cases.

Wherefore, the judgment is reversed and the cause remanded with directions to dismiss the motion with costs, but without prejudice.  