Stephens v. Boswell

• Decision Date: 23 June 1829
• Citation: 25 Ky. 29
• Parties: Stephens v. Boswell.
• Court: Kentucky Court of Appeals

25 Ky. 29

Stephens v. Boswell.

Court of Appeals of Kentucky.

June 23, 1829

Constable. Magistrate. Appeal. Circuit Court. Jurisdiction. Statute.

ERROR TO THE OHIO CIRCUIT; ALNEY M'LEAN, JUDGE.

McHenry for plaintiff.

OPINION

ROBERTSON JUDGE:

In July, 1823, a fieri facias issued in favor of Boswell, for the benefit of Wallace for $31.12 1/2 cents and costs, from a justice of the peace for Ohio county. It was delivered to Stephens, a constable, but the time of delivery does not appear. It was returnable on the 1st Saturday in September. There was an endorsement upon it for commonwealth's paper, on the 27th of October, 1823, it was returned with an endorsement by Stephens, that he had received $18.08 cents on the 14th October, 1823.

If an officer collect money, after the return day of an execution and endorse the same, and make return, his act is unofficial. The plaintiff in execution may affirm the act, and by proper action compel him, as an individual, to pay the money; or he may proceed against the def't. and recover his demand the endorsement notwithstanding.

Boswell, in September, 1827, obtained a judgment for $18.08 cents against Stephens before a magistrate. Stephens appealed to the circuit court; where, without pleading or writing, judgment was rendered for $18.08 cents with costs.

To reverse this judgment, this writ of error is prosecuted.

The magistrate has no jurisdiction at the time the judgment was rendered. The magistrate had no right, at that time to render judgment for $18 in commonwealth's paper.

When a magis trate had no jurisdiction, circuit court can acquire none by appeal.

The circuit court, therefore, had no jurisdiction. We have no doubt, however, that in an appropriate action, the creditor in the execution could have rightfully recovered of Stephens the amount which he had collected. He was not officially responsible, because the money was collected after his power to collect it by execution had expired. But on the receipt of the money, the law would imply an assumpsit to pay to the creditor the value of it. The law will not imply an assumpsit to pay any thing but money; consequently, no more than the value of the paper, could be recovered of Stephens. The act of 1827, Ses. Acts, 187, authorizing judgments for commonwealth's paper against officers, applies only to officers who collected commonwealth's paper " " officially." Therefore, as the receipt in this...