
    Graham and Others v. The State for the use of Patton and Another.
    Constable s Bond—Suit on.—In a suit on a constable’s bond because of the illegality and insufficiency of the constable’s return to a fieri facias, the declaration should show what the return was which is alleged to be illegal and insufficient.
    Same—Pleading.—If a declaration in such suit setting out the condition of the bond, &c., be demurred to, and the demurrer be overruled, the damages should be assessed by a jury.
    ERROR to the Tippecanoe Circuit Court.
   Blackford, J.

This was an action of debt brought by the State, for the use of Patton and Winton, on a constable’s bond. The suit is against the constable and his sureties. The declaration alleges as a breach of the condition of the bond, that Patton and Winton had obtained a judgment before a justice of the peace against Huff; that a fieri facias issued on the judgment, and was delivered to the constable to be executed; “that the constable made an illegal service and return of the execution, neither making the money nor giving any legal and satisfactory reason in his return for failing to make the money all which is contrary to the statute, &c.

General demurrer to the declaration; demurrer overruled; and final judgment rendered for the plaintiff.

This declaration can not be supported. The statute authorizes a suit on a constable’s bond, if he fail to return an execution or to pay over money collected on it, or if be make a false return. Rev. Stat., 1838, p. 148. The breach of the officer’s duty assigned in the declaration before us, is his making an illegal and insufficient return to the execution. This assignment is defective, because it does not inform us what the return was which the officer made, and which the *plaintiff considers illegal and insufficient. It merely states a conclusion of law, instead of setting out the facts from which that conclusion is drawn, which is contrary to the first principles of pleading. 1 Chitt. Plead., 244.

W. M. Jenners and R. A. Chandler, for the plaintiffs.

J. Pettit, for the defendant.

There is another error in this case. The damages should have been assessed by a jury, and not by the Court. Rev. Stat., 1838, p. 449.

Per Curiam.—The judgment is reversed at the costs of the relators. Cause remanded, &c.  