
    *Tazewell Governor, for Maynard's Ex’x, v. M’Candlish and Others.
    March, 1839,
    Richmond.
    (Absent Parker and Stanard, J.)
    Pleading and Practice — Declaration—Debt on Bond— Assignment ot Breaches. — In debt in a circuit court, upon the official bond of the marshal of the late superior court of chancery for the district, the breach assigned in the declaration is, that the chancery court having, in a suit therein pending in which the relator was defendant, made an order directing the marshal to take possession of certain slaves (averred to be the property of the relator) and hire them out until the further order of the court, the marshal accordingly took possession of the slaves, hired them out, and collected the hires, but failed to pay them over to the relator, “ to whom they belonged, and who was entitled to receive them from the marshal, as would appear by reference to the record and proceedings in the said suit, remaining in the office of the circuit courtOn general demurrer to the declaration, Held, the assignment of the breach is defective in substance ; the title of the relator to demand and receive the hires from the marshal not being sufficiently set forth.
    Debt, in the circuit superior court of Janies City and Williamsburg, in the name of Eit-tleton W. Tazewell governor of the commonwealth, suing at the relation of Elizabeth Eawrence executrix of Eleanor Maynard deceased, against William M’Candlish and five others, obligors in the official bond given by M’Candlish as marshal of the late superior court of chancery for the district of Wil-liamsburg.
    The declaration set forth the bond, which was in the penalty of 20,000 dollars, with condition that M’Candlish should pay over all moneys which he might receive by virtue of his office, to the persons entitled to receive the same, and should discharge faithfully all the other duties appertaining to the said office, as long as he should continue in the same. Seven breaches of *the condition were assigned. In each of them it was set forth, that on the 19th of July 1822, the said superior court of chancery, in a suit between Richard Blow plaintiff and the said Eleanor Maynard defendant, then pending therein, but since determined, awarded an injunction to restrain the defendant from selling or removing certain slaves in her possession until the further order of the court, and directed the marshal to take possession of the slaves, and (in case the defendant should not, within ten days, give to the plaintiff bond with security in double their value) to hire them out until the end of the year, and from year to year afterwards until the further order of the court. And then
    1. The first assignment alleged, that in pursuance of the said order the said marshal took possession of the slaves, the property of the said Eleanor Maynard, but did not perform the other duties required of him by the said order, but so improperly and unfaithfully conducted himself in the premises, that the hires and profits of the slaves for the residue of the year 1822, and for the years 1823 and 1824, amounting to 720 dollars, were totally lost to the said Eleanor Maynard, to whom the said hires and profits belonged, and who was entitled to receive them from the said marshal, as by reference to the record and proceedings in the said suit, remaining in the clerk’s office of the said circuit superior court of law and chancery, would more fully appear.
    2. The second assignment alleged, that in pursuance of the said order the said marshal took possession of the slaves, the property of the said Eleanor Maynard, and hired them out until the end of the year 1822, and after-wards for the years 1823 and 1824, and for the hires, amounting to 720 dollars, took bonds, notes and securities, which he converted to his own use, whereby all the hires were lost to the said Eleanor Maynard, to whom the said hires, and the said bonds, notes and securities taken therefor, belonged, as by reference to *the record and proceedings in the said chancery suit, remaining in the office of the said circuit superior court, would more fully appear.
    3. The third assignment alleged, that in pursuance of the said order the said marshal took possession of the slaves, the property of the said Eleanor Maynard, and hired them out, and received and collected the hires, amounting to 720 dollars, which said hires belonged to the said Eleanor Maynard, who was entitled to receive them from the said marshal, as would more fully appear on reference to the record and proceedings in the said chancery suit, remaining in the office of the said circuit superior court; but that the said marshal did not pay over the said hires to the said Eleanor Maynard, though ‘requested to do so, but converted the same to his own use, whereby they were totally lost to the said Eleanor Maynard in her lifetime, and to her executrix since.
    4. The fourth assignment alleged, that in pursuance of the said order the said marshal took possession of the slaves, the property of the said Eleanor Maynard, and hired them out, and received and collected the hires, amounting to 720 dollars, which said hires belonged to the said Eleanor Maynard, who was entitled to receive the same, as by the record and proceedings in the said suit, remaining in the office of the circuit superior court, would more fully appear; that after-wards the said superior court of chancery made an order requiring the said William M’Candlish, who had been removed from the office of marshal, to deposit the amount of the said hires in bank to the credit of the court in the said cause, and to render a report of all his transactions under the previous order of the 19th July 1822, as would more fully appear on reference to the record and proceedings in said suit, remaining &c. but that the said M’Candlish did not deposit the amount of the said hires in bank, nor render a report of his '^transactions, as required by the said order of the court, but wholly failed and refused to comply with the requisitions of the same, and so improperly and unfaithfully conducted himself in the premises, that the said hires were wholly lost to the said Eleanor Maynard, to whom they belonged, and who was entitled to receive them, as would more fully appear by reference to the record and proceedings in the said chancery suit, remaining &c.
    5.The fifth assignment alleged, that in pursuance of the said order of the 19th July Í822, the said M’Candlish, marshal as aforesaid, took possession of the slaves, the property of the said Eleanor Maynard, and hired them out, and took bonds, notes and other securities for the hires, which amounted to 720 dollars, to which said bonds &c. the said Eleanor Maynard was entitled, as would more fully appear on reference to the record and proceedings in the said chancery suit, remaining &c. — that afterwards the said superior court of chancery made an order that the said M’Candlish, who had been removed from the office of marshal, should render a report of all his transactions under the previous order of the 19th of July 1822, and deliver all bonds, notes or other securities for the hire of any of the said slaves, to the marshal of the court, tó be collected by him, as on reference to the record and proceedings in the said suit, remaining &c. would more fully appear; yet the said M’Candlish neither rendered a report of his transactions aforesaid, nor delivered the said bonds &c. or any of them to the marshal, as required by the order aforesaid, but wholly failed and refused to comply with the requisitions thereof, whereby the said hires, and the said bonds &c. taken therefor, were wholly lost to the said Eleanor Maynard, to whom they belonged, and who was entitled to receive the said bonds &c. as by reference to the record and proceedings in the said suit, remaining &c. would more fully appear.
    *6. The sixth assignment alleged, that in pursuance of the said order of the 19th July, 1822, the said M’Cand-lish, marshal as aforesaid, took possession of the slaves, the property of the said Eleanor Maynard, and hired them out, but took no bonds, notes or security of any kind for the hires, as, in the faithful discharge of his office, and in the execution of the said order, he ought to have done, whereby the said hires, amounting to 720 dollars, were wholly lost to the said Eleanor Maynard, to whom they belonged, and who was entitled to receive the same and the bonds &c. which should have been taken therefor, as by reference to the' record and proceedings in said chancery suit, remaining &c. would more fully appear.
    7. The seventh assignment alleged, that in pursuance of the said order of the 19th July 1822, the said M’Candlish, marshal as aforesaid, took possession of the slaves, the property of the said Eleanor Maynard, and hired them out, taking- bonds, notes or other securities for the hires, and afterwards, without any order of the court authorizing him to collect the said hires, did collect and receive the same, amounting to 720 dollars, and gave discharges and acquittances therefor, and delivered up the bonds &c. to the hirers who had executed the same, whereby the said hires were wholly lost to the said Eleanor Maynard. to whom they belonged, and who was entitled to receive the same and the bonds &c. so taken therefor, as by reference to the record and proceedings in the said suit, remaining &c. would more fully -appear.
    The declaration concluded with averring nonpayment of the penalty of the bond, to the plaintiff, or to either of his predecessors in office.
    The defendants demurred generally to the whole declaration, and to each and every assignment of breaches therein set forth. On argument of the demurrers, the court held that the law thereupon was for *the defendants, and rendered judgment that the relator take nothing by her bill, and that the defendants recover against her their costs. To which judgment a supersedeas was allowed by the court of appeals.
    Harrison, for the plaintiff in.error.
    Eeigh, Johnson and Daniel, for the defendants in error.
    
      
      The principal case is cited with approval in State v. Hall, 40 W. Va. 463, 21 S. E. Rep. 762.
      See monographic note on “ Debt, The Action of ” appended to Davis v. Mead, 13 Gratt. 118, and monographic note on “ Official Bonds ” appended to Sangster v. Com., 17 Gratt. 124.
    
   TUCKER, P.

I am of opinion that the judgment in this case should be affirmed, the declaration being radically defective, as it shews no right of action in the relator. The material facts set forth in the declaration shew the following case :

In the suit of Blow v. Maynard, an injunction was awarded, whereby, under certain circumstances, M’Candlish the marshal of the court was directed to take into his custody certain slaves, which were in the possession of and claimed by the relator’s testatrix, and to hire them out from year to year until the further order of the court. The marshal took possession of the slaves. The declaration, after setting out these matters in detail, proceeds to set out the gravamen of the case in seven different ways : 1. That the marshal, though he took possession of the slaves, failed to perform the other duties required by the order, whereby the hires were lost. 2. That he took bonds, and converted them to his own use. 3. That he collected the hires, but did not pay them over to the testatrix. 4. That he collected the hires, and refused and failed to pay them into the bank, though ordered to do so. 5. That he failed to deliver the bonds to his successor, as he was ordered to do. 6. That he failed to take any bonds. 7. That he delivered up the bonds to the hirers, and gave acquittances for them, so that they were altogether lost to the relator’s testatrix. The action is brought upon the official bond of the marshal, and at the instance of Elizabeth Eawrence executrix of Eleanor Maynard, to whom it is averred the slaves belonged, *and who, it is averred at the conclusion of each assignment of | breaches, was “entitled to receive the amount of the hires” from the said M’Candlish, “as by reference to the record &c. would more fully appear.”

To this declaration the defendant filed a general demurrer, which of course only brings in question the substantial character of the declaration. I am of opinion that it is defective in substance, in this, that it no where shews any title in the relator to sue. It alleges, indeed, that her testatrix was entitled to receive the amount of the hires from M’Candlish, “as appears by the record;” but that record forms no part of the pleadings, and is not indeed even a record of the same court. It does not then appear from the declaration, that she was entitled to demand the hires from M’Candlish, or that he was bound to pay her, or would have been justified in doing so. He was a public officer of the court, receiving funds which he was' to retain until further order. It was incumbent, then, to shew such order distinctly, in that breach which complained of nonpayment. And as to those which complain of a failure to pay the hires into bank, or to deliver over to the succeeding marshal the bonds taken for the hires, these disprove the right of the testatrix to receive them, since they shew no final disposition of them in her favour. If there be any order in the chancery cause awarding the hires, or the bonds and securities, to Eleanor Maynard, that order should have been distinctly set out. The existence of such an order, and the failure to obey it, is the gist of the plaintiff’s action. The official bond indeed is sued on, but the breach is the gist; for without a breach, there is no cause of action. Now, the breach in this case consists in failure to obey some order to pay over the money or deliver over the bonds. Of course the order is of the gist of the action. Now where a record is of the gist of the action, it must be shewn with certainty; *as in an action of debt upon a judgment. 1 Chitty’s Plead. 355. So too it is a general principle, that it is not enough that the party hath right, but such right must be disclosed in the record, so as to enable the judges to pronounce-upon it. Hobart’s Rep. 233. Thus, it is not enough for the party here to aver “ a title to receive, as appears by the record, ” but it should be shewn how she had title, that the court might see whether it was a good title or not. If, for example, the defendants had made default, how could judgment have been entered for the plaintiff, upon the mere allegation that she was entitled, as appeared by a record not in court ? How could the court see whether the record did or did not give title, without a distinct statement in the declaration of the order relied on ? And how, upon this general and indefinite statement, could there be an issuable plea of no such record ? That plea denies the existence of a record set out. Here, none is set out. And the plea of no such record would not be an answer to the allegation that the relator was entitled. Moreover, whatever her title to the hires, she had no right of action against the officer, unless he was ordered to pay. Her title to the money was not therefore sufficient. An order or decree was essential, declaring that title, and directing the officer to pay over the funds to her, or into hank, subject to her order.

The case of Jones v. Jones, not reported, is said to decide this case, though J do not think such a precedent is necessary to sustain this decision, which is founded on general and well received principles. The judgment is right in principle ; but having given costs generally, without directing them to be levied de bonis testatoris, it must for that cause be reversed with costs.

PER CURIAM. The court is of opinion that the circuit court erred in giving judgment for costs to be paid de bonis propriis : therefore the judgment is reversed '"'with costs. And this court, proceeding to render such judgment as the said circuit court ought to have given, is of opinion that the matters of law arising upon the defendants’ demurrer to the plaintiff’s declaration are for the defendant; therefore it is further considered that the plaintiff take nothing by his bill, and that the defendants go &c. and recover &c. their costs in the circuit court expended.  