
    *Bennett’s Ex’or v. Giles, Governor, at the Relation of Loyd.
    April, 1835,
    Richmond.
    Sheriff — Debt on Official Bond — Plea.—In debt on sheriff’s official bond in name of G. successor of T. governor of Virginia, to whom the bond was given; plea, that G. was not, and that M. was, the successor of T. and demurrer to the plea: Held, though the plea was obviously designed to entrap, the demurrer must be overruled.
    Practice at Law — Demurrer to Plea — Effect.—Upon demurrer taken by a plaintiff to a plea, the court goes back to the first fault, and if plaintiff’s declaration is defective, gives judgment for defendant on the demurrer; nor is the defect cured by the defendant pleading over.
    Variance — Date of Bond- — Plaintiff counts on a bond dated in 1811; upon oyer craved, a bond is shewn dated in 1810; and afterwards plaintiff demurs to a plea of defendant: Held, the variance between the bond alleged in the declaration, and the bond, shewn on oyer, is fatal.
    Sheriff — Debt on Official Bond — Assignment of Breaches. —In debt on a sheriff’s official bond, the breach assigned is, that the sheriff’s deputy acknowledged, after he ceased to be deputy, that he had received money on an execution, not that the deputy had in fact received it: Held, the breach is not well assigned.
    Debt, in the circuit court of Loudoun, in the name of Giles governor' of Virginia, successor of Tyler former governor, at the relation and for the benefit of Loyd, against the executor of Bennett, late sheriff of Loudoun, upon his official bond. The declaration counted on ■ the bond as being dated the 14th August 1811; and setting out the condition, that the sheriff “should well and truly execute and due return make of all process to him directed, and pay and satisfy all sums of money and tobacco by him received in virtue of any such process, to the person or persons to whom the same should be due,” — assigned as the breach, that Boyd, in December, 1810, sued out of the county court of Lou-doun, a writ of venditioni exponas against the goods and chattels of one Keene, for SO dollars, with interest &c. which writ was delivered to Binns, a deputy of Bennett, then *sheriff of the county, and returned “no sale for want of bidders;’’ and afterwards in 1812, sued out another venditioni exponas for the same debt, which writ was also delivered to Binns, then also a deputy of Bennett the sheriff; on which last process, Binns, after-wards, on the 6th April 1816, acknowledged <hat he had received 72 dollars, which was then and there due to Loyd, by virtue of the process; and Binns had failed to pay the 72 dollars to Loyd; and so the condition of the sheriff’s bond was broken. The defendant craved oyer of the bond and condition ; and the bond shewn upon the .oyer craved, was dated the 6th August 1810, instead of the 14th August 1811, the date of the bond counted on in the declaration. The defendant pleaded, 1. Conditions performed, on which an issue was made up. 2. That Mr. Giles was not the successor of governor Tyler, to whom the bond was given; to which the plaintiff replied, that he was, concluding with a verification ; but no issue was formally made up. 3. That Mr. Giles was not, but Mr. Monroe was, the successor of governor Tyler to whom the bond was given ; to which the plaintiff demurred generally, and the court sustained the demurrer. A jury was sworn “to try the issues on the first and second pleas,” who found on both issues for the plaintiff, and assessed his damages by reason of the breach of the condition, to 128 dollars. Judgment for the penalty of the bond, to be discharged by the payment of the 128 dollars damages &c. to be levied de bonis testatoris. The defendant appealed to this court.
    Leigh, for the appellant.
    Johnson, for the appellee.
    
      
      See monographic note on "Official Bonds" appended to Sangster v. Com., 17 Gratt. 124.
    
    
      
      See monographic note on “Demurrers” appended to Com. v. Jackson, 2 Va. Cas. 501.
    
    
      
      Variance — Date of Bond. — The principal case is cited and approved in Damarin v. Young, 27 W. Va. 437. See Cooke v. Graham, 3 Cranch 229; Davis v. Miller, 14 Gratt. 1.
    
   CARR, J.

The plaintiff’s demurrer to the defendant’s third plea, opened his own pleadings to objection, and -made it the duty of the court to look back to the declaration. That counts on a bond dated the 14th August *1811. The bond produced was dated 6th August 1810. This is a fatal variance; Cook v. Graham’s adm’r, 3 Cranch 229. Upon this ground, I think the judgment must be reversed, and judgment entered for the appellant.

TUCKER, P.

I think there are several fatal errors in this record.

1. The bond declared on, is recited as bearing date in 1811; that produced, and made part of the declaration upon oyer, is dated in 1810. That the variance is matter of substance, and fatal, appears by the case of Cooke v. Graham’s adm’r. It appears by that case, too, that the error is not cured by pleading over: for the defendant there, pleaded conditions performed, as the defendant did here; the plaintiff replied, and assigned a breach, and the defendant rejoined a bad rejoinder, to which the plaintiff demurred; the court went back to the first fault, and entered judgment on the demurrer for the defendant. The case of Armstrong v. Armstrongs, 1 Leigh 491, is not in conflict with this opinion : in that case, the question was upon the trial of the issue before the jury; here, it is upon demurrer; and upon demurrer, where the' defendant has taken oyer, he may take advantage of the variance; Macon v. Crump, 1 Call 575.

2. The declaration is further defective in averring, not that the deputy sheriff had received the amount of the execution, but that he had acknowledged he had done so. This was a bad averment. The receipt of the money was the gist of the action. It ought to have been directly averred, that the defendant might, if he chose, put it in issue. The acknowledgment of the receipt of it, did not offer proper matter upon which an issue could be made up. An issue made up on it would have been immaterial. For though it be true, that the deputy made the acknowledgment, it may be false that *he received the money. And thus, though the issue was found for the plaintiff, the fact would not be established, on which his right of recovery depends ; namely, the actual receipt of the money.

3. The plea itself to which the plaintiff has demurred, though evidently filed to entrap, cannot be pronounced to be bad in substance. It amounts, in effect, to a denial of the right of Mr. Giles to sue as the successor of governor Tyler; and if the fact were true, as stated in the plea, it is obvious that Mr. Giles could have no right to sue. It was contended, that the same plea having been before pleaded, could not be pleaded a second time. This might have been a very good reason for the rejection of the plea by the court, but it does not make the plea bad upon demurrer. For the question on the demurrer is, whether the plea is a good plea, not whether the defendant should be permitted to file it. They are not equivalent questions; and, indeed, the first can never be presented to the court, until the second has been decided, and decided, too, in favour of the party who offers the plea.

Upon the merits, I incline to think the plaintiff is right; but for the foregoing errors, the judgment must be reversed, and a judgment entered for the defendant. In a future action, the plaintiff may be more fortunate.

BROCKFNBROUGH, CABHLL and BROOKE}, J., concurred in the opinion of the president.

Judgment reversed, and judgment entered for the defendant.  