| Ky. Ct. App. | Oct 27, 1897
delivered the opinion of the court.
The foregoing cases are heard together. At the August election, 1888, appellant, M. A. Moore, was elected sheriff of Whitley county, and duly qualified as such. He executed the bonds required by law, among which was a bond for the collection of the county levy of Whitley county upon which appellants, Bird, etc., were Ms sureties. At its October term, 1888, the Whitley County Court of Claims allowed the claims in suit, except at the April term, 1889, part of the claims were allowed, which amounted to about $40, total claims amounting to $1,016.88. Taxes were levied for the purpose of paying these, together with other claims. The plaintiff, Geo. W. Lawson, claims that he is the owner of the claims in suit. He alleges that J. L. Lawson, who was acting as deputy for Sheriff Moore, purchased the claims for him. Moore, in his answer, alleges that J. L. Lawson owned the claims, and that he had paid them to him. The reply admits that Lawson purchased the claims, but says that he purchased them as agent of the plaintiff and with his money. Such was the issue when the jury was empaneled to try the case as between Moore and the plaintiff. This suit was Bled on August 4, 1898. About that date Moore endeavored to settle with his deputy, J. L. Lawson, and for some rea
It is a most remarkable transaction that, if the plaintiff owned these claims, he would allow J. L. Lawson to hold them for three or four years, and not account to him therefor. It is further most remarkable, as plaintiff had never paid or promised to pay J. L. Lawson anything for buying these claims for him, that J. L. Lawson was willing to execute his note and pay plaintiff 10 per cent, interest on it for the privilege of buying claims for the plaintiff. .Such a transaction could take place, and may have taken, place, but it is the most improbable business transaction imaginable. These claims, according to the testimony in this record, were never assigned to the plaintiff until they had been extinguished in the first instance by the payment which J. L. Lawson made the plaintiff, and after the sheriff had been released from any liability therefor. The assignment was invalid. The sureties on the bond, according to the showing which the plaintiff made in this case, are not lia
It is insisted that the purchase of tha claim of the $400 by J. L. Lawson for himself and other claims as the agent of the plaintiff was against public policy because of the provision of section 10, article 3, chapter 27, General Statutes, which is as follows: “No county judge, county attorney (sheriff or deputy sheriff, circuit clerk or deputy and county clerk or deputy), or justice of the peace shall purchase or speculate in any claim allowed by the court of claims of his county. For any violation of this provision the person offending may be punished by indictment of the grand jury in a sum twice the amount so purchased or speculated in.”
There is testimony in the record which tends to show that J. L. Lawson used the name of others with a view of evading that statute. The deputy sheriff, Lawson, admits that he bought the claim of $400 of the county judge and paid for it with his own money. In so far as this claim is concerned, it must be regarded as a payment by him for Moore, and he is entitled to a credit therefor in a settlement with Moore. It was the duty of Moore or his deputy to pay that claim, hence it must be regarded as a payment by the deputy for his principal. It is perfectly manifest that the deputy
The instructions of the court did not fully present the questions to the jury according to the views we have expressed, and wherein they do not agree herewith they are erroneous. The verdict of the jury is palpably against the weight of the evidence.
The judgment is reversed for a new trial and for proceedings in conformity with this opinion.
The court delivered the following response to a petition for a rehearing on December 2, 1897:
Counsel claims in the petition for rehearing that the deputy sheriff, Lawson, bought the $400 claim between tho time it was allowed at the October term, 1888, and the 1st of January, 1889, when Moore was inducted into office.
Counsel submits a question to the court, which is as follows: “Now if it was purchased by J. L. Lawson before he was Moore’s deputy Moore ought not to be entitled to any credit for it on the idea that it was purchased with his money.”
There are two answers to the question, the first is, that if
If it be true J. L. Lawson bought this claim before Moore became sheriff, and while be was acting as deputy for tbe previous sheriff, it was in violation of tbe statute, and be could not maintain an action on it. However, no doubt Moore will gladly give him credit for it in any settlement which be and bis deputy may make.