
    Fowler et al. vs. The Commonwealth, for the use of Taylor.
    Covekant.
    
      October 10.
    
    Grounds" of the
    Clerks are to büís hito the hands of the lection, before thetst of Apnh then*the sheriff is bound to ao-on or beforethe foiiowin"Ut°^If the' sheriff receives them after the 1st of he^req'uired'u) accouut, in a reasonable tune
    Where a sher-UllsToTeollection after the ed i'/suecTfoi-fading to account, an averment that he did not pay §-c. “ as directed by law,” being merely tantamount to an a-veriueiit that he did not pay fyc. by the 1st of Oct. is no sufficient breach.
    
      [Messrs. Sanders and Depew for Plaintiffs : Messrs. Morehead and Brown for Defendant.]
    From the Circuit Court foe Campbell County.
   Chief Justice Robertson

delivered the Opinion of the Court.

This is an action of covenant against a sheriff and his sureties, for an alleged breach of his official bond', in his-failing to account for fee bills, which he had received for collection from Taylor, as clerk of the circuit and county courts of Campbell county.

The assignment of errors presents only two questions worthy of consideration : first, the sufficiency of the declaration ; second, the sufficiency of a plea, No. 5.

The declaration avers, that the fee bills were received by the sheriff, on the 22d of September, 1825, and that he u ¡iaf no¿ accounted for, and paid them, at such time, and in such manner, as is,directed by law.” , No sufficient breach is assigned. The-law made it the duty oaf the clerk to deliver his fee bills to the sheriff before the 1st of April; anj ajso luac|e ¡t the duty of the sheriff, when the fee bills had been thus delivered, to account lor, and pay the iees, on or before the 1st of October succeeding the delivery,

Although the sheriff and his sureties may be liable for 1ee bills which he voluntarily received for collection when he was not bound to receive them, nevertheless, a),e not responsible for his failure to account for, and pay the fees, '■‘■on or before the first of October” — or (what is the same thing) “ at such time as is directed by law” — which is on or before the 1st of October'” succeeding the delivery by the clerk. 1 here is no averment that the sheriff foiled to account for, and pay the fee bdis- , , ia a reasonable tune.

A plea, which may be taken as true, and yet some cause of action remain, is bad.

Wherefore, the declaration does not shew that the . sheriff had been guilty of any breach of official duty, or of any implied, or express, undertaking.

It may not be improper to suggest, that the record shews, that the sheriff undertook to account for the fee bills within six months.

Plea No. 5 avers, that the fee bills <£ were on persons who were insolvent, and also on persons who were nonresidents of the county of Campbell.” It does not aver, that all the persons were either nonresident or insolvent; nor that none of the fees were, or could have been, collected by the sheriff. The plea is insufficient because, admitting every allowable deduction from it, a cause of action may, nevertheless, have existed.

Judgment reversed, and cause remanded, with leave to amend the declaration.  