Northcut v. Commonwealth for Lindsey , 33 Ky. 483 ( 1835 )

Judge Marshall

delivered the Opinion of the Court,

This action was brought, in the name of the Commonwealth, for the use of the administrator of a deceased sheriff, against a constable and his sureties, upon their 3 ° 1 official bond*

The declaration alleges, that the decedent had placed in the hands of the constable, certain fees, dues and accounts, of various amounts, as expressed in a list appended to the declaration, and amounting altogether to one hundred and seventy six dollars twenty one cents, which were due to the decedent, as late sheriff &c., andi which the constable then and there received to be collected and accounted for with the decedent; and the1 breach is, that he did not pay over and account for them, though a long time has elapsed, and although often requested.

The defendants filed various pleas, to which the plaintiff demurred, and the Court having sustained the demurrer, and the defendants failing to plead further, a writ of enquiry was executed, and a verdict and judgment rendered against the defendants, for the entire' sum ®f one hundred and seventy six dollars twenty one cents.

The breach alleged in the declaration, is, in our ©pinion, insufficient. There is no averment, either that the ‘fees,, dues and accounts’ placed in the constable’s hands, were then collectable by distress; nor that the sums due upon them were actually collected; and without one of these averments, it does not appear from the declaration, that it was the official duty of the constable to pay over or account for the dues, fees and accounts placed in his hands. If it were admitted to be the official duty of a constable who receives for collection, demands which are collectable by warrant, to have the warrants issued, and proceed to the collection by means thereof, the breach would be still insufficient, as the declaration neither avers, that he did not collect the money, nor that he failed to have warrants issued. Neither does it allege,, that process had come to his hands, as constable- for the collection ©f the demands received by him; nor that he failed to execute or make return thereof.

For these reasons, the declaration is deemed insufficient to show a breach of the official bond, by which alone the securities could be rendered liable for the failure of the principal. We are, therefore, of the opinion, that it. should have been adjudged bad upon the demurrer to the defendants’ pleas;- and that, consequently, the judgment thereon for the plaintiff and all the subsequent proceedings were erroneous.

Wherefore, the judgment is reversed, and the cause remanded, with directions that the plaintiff have leave to amend his. declaration.