
    Lathrop against Allen and others.
    in fin Belli n brought mi a bond given by a collector oi* taxes, against him and bis sureties, the de<~ larntion alieóriht u«3 i'j warrant of : supervisors requiring him to collect and pay over the amount, including fees for collection, and igned ns a breach of the condition of the bond the nonpayment of the amount on tfHch the insures were assessed ; It w-s held bad, and the judgment of the Court Qi Common Jalead for the endantj on the insufficiency of the declaration.^ \rw affirmed,
    IN ERROR, to the Court of Common Pleas of Otsego bunty.
    The plaintiff, as supervisor of the town of Cherry Halley, •ought an action ot debt against the defendants, Alien, and S id & his sureties, on a bond dated November 25,1818, for 3,301 bllars and 84 cents, conditioning that if the defendant, Allen, d, in all things, duly and faithfully execute and perform all and igular the duties of his office as collector of the town of Cherry 
      
      yalley, without any fraud or delay, Slc. then, &c. The plaintif after setting forth the bond and condition, averred that Allet after the execution of the bond, to wit, on the 25th of Novem her, took upon himself the office of collector, &c. and receive from the plaintiff the assessment roll of the town of Cherry Val ley, with a list of the taxes to be collected for the year 181i with a warrant from the board of supervisors of the county, re quiring him to collect from the persons mentioned in the a¡ sessment roll,, the several sums mentioned, <^c. amounting tc gether to 1,642 dollars and 92 cents, and to pay over to th treasurer of. the county, on or before the first .day, of Februar then next, the sum of 891 dollars and 90 cents, and to the core missioners of the common schools of the town of Cherry Vat ley 186 dollars and 10 cents, and to the plaintiff, as superviso: &c. the sum of 556 dollars and 92 cents, irtcludipg fees for co' lection ; that the defendant Allen, also, on the same day, r< ceived from the plaintiff a warrant of the board of supervisor requiring him, according to the provisions" of the act, fyc. t .collect from two quakers in Cherry Valley, within sixty day the sum of four dollars each, and pay the same to the treasure of the county. The plaintiff further alleged, that the defent ant Allen did hot duly and faithfully perform the duties of h pffice as collector, tyc. hut made default in this, to wit, that b neglected, omitted and refused to collect and pay over to tl treasurer of the county of Otsego, on or before the first day i February then next, and now last past, the said sum of 899 do Iars and 90 cents, ty-c. but that a large sum, to wit, 864 dolía and 73 cents, being part thereof, still remained due and unpait nor did he in any manner, nor has he yet, accounted with, paii or satisfied the treasurer for the same; hor did he, on or befoi the said first day of February, collect and pay over to the con missioners of common schools of the town of Cherry Valle the said sum of 186 dollars and 10 cents, &c. but that (be san still remains due and unpaid, fzc. The plaintiff further assigm as breaches of the condition of the said bond, 8tc. to wit, “ th a large sum of money,.to wit, the sum 'of 864 dollars and ' cents, being part of the money so ordered and required to I collected, was collected by, and remained in the hands of tl defendant A,, as collector ; yet, although often requested, & •he did not, nor hath he yet paid over the same to the treasur >f the county of Otsego, nor hath he in any maimer accounted iith or satisfied the said treasurer for the same, but has wholly lil d and made default, and hitherto refused and still refuses to lay, satisfy, or account with the said treasurer for the same. Ind that the said sum of 864 dollars and 73 cents being part of he amount which the defendant A- was so directed to collect* md pay over, <^c. remaining unsatisfied and unaccounted for, he treasurer of the county of O, afterwards, to wit, on the 27th lay of February, 1819, according to the act, fyc. issued his varrant to the sheriff of the county of O., commanding him to :ause the said sum to be levied and made of the goods and ihattels, lands and tenements, of the said A., and to return the noney to him, the said treasurer, in forty days, &c. which varrant was, afterwards, duly returned by the sheriff of O. with m endorsement thereon that the said A. had no goods or chattels, lands or tenements, whereof the said sum of money could be made, &c. of all which premises due notice was given by the treasurer to the plaintiff, accordingto law, before the commencement of this suit : By reason whereof, &zc. an action accrued to the plaintiff, &c. Judgment for want of a plea was entered in the Court below, and a writ of inquiry awarded to assess the damages, and an inquisition returned, assessing the damages at 857 dollars and 88 cents : The defendants moved in arrest of judgment, for the insufficiency of the declaration ; and the Court below ordered judgment to be arrested, The plaintiff thereupon, in order that he might bring a writ of error, prayed judgment against himself, and in favour of th,e defendants, for the insufficiency of the declaration, which was gra.nt.ed, 8zc.
    
      L. Beardsley for the plaintiff in error.
    The case npw before the Court is to be viewed in the same light, as if there had been a verdict for the plaintiff, and any defects in the declarar lion which are cured by a verdict, are to be deemed as cured. (2 Wils. 261. 3 Burr. 1725. 2 Johns.Rep. 850. 11 Johns Rep. 141. 1 Wils. 255. T. Raym. 15, 16. 487. 3 Bl. Com. 394. 2 Tidd’s Pr. 825. l Sellon’s Pr. 498, 499.) The declaration contains every material and necessary allegation to support the action, and pursues the statute. (2 N. P. L. 125, 126. 513.) The breaches, also, are well assigned. The collectr or is required by the act (2 N. P. L. 138. sess. 3.) to account. wjtjj (reasurer for all the money which he collects, or is di e J rected to collect; and if he neglects to do so his bond become: forfeited. By suffering a default, the defendants admit that th< breaches are well assigned; and the jury have found them to b< true. If some of the breaches are well assigned, ^nd some had and the defendant demurs generally, the -plaintiff is entitled tc judgment for those which are well assigned. -(2 Saund. 380. 1 Saund. 286. n. 9. Cro. Jac. 557.)
    
    
      Seelye, contra.
    1. It is made the duty of the supervisors te deliver the tax list, with their warrant, to the collectors, on oí before the first day of November, in each year; (2. N. R. L. 511 sess. 4.) but it appears by the declaration, that the tax list and warrant were not delivered, in this case, until the 25th of November, and no excuse is shown for the delay. If the supervisors might delay the delivery of the tax list and warrant for a month, they might delay it until the very last day, and then ii the collector was in default, bring their actio,n against his sureties. It is obvious from the act, that it was the intention of the legislature, that the collectors should have three months for malting their collections.
    , 2. It appears from the declaration, that the plaintiff seeks to recover of the sureties of A: the fees of collection, as well as the amount which the treasurer was entitled to receive. The amount of the tax list is 899 dollars and 90 cents, including the collector’s fees, and the first breach assigned is for the nonpayment of that sum to the -county treasurer; but the exact sum due to the treasurer was only eight hundred and fifty-four dollars. A surety cannot be made responsible beyond the legal liability of his principal. The plaintiff must set forth his cause of action according to his legal rights.^ If the breach varies from the sense or substance of the covenant or contract, it is insufficient. (1 Chitty's Pl. 328. Sir T. Jones' Rep. 125.)
    3. The two first assignments of breaches in the declaration show no cause of action. The statute (2 N. R. L. 126. sect. 1.) requiring the collector to give security, directs the mode of giving the bond ; that it shall be given in double the amount oí taxes to be collected. The bond cannot become forfeited, until the collector makes default in paying over the money; nor until after the county treasurer has issued his warrant against the collector, and it is returned nulla bona, he. Now, there is no irment of these facts in the two first assignments of breaches, íe assignment of each breach should show a good cause of ac-n. No resort can be had to the third assignment of breach this case, to help the first; for each must be good and per;t in itself. (13 Johns. Rep. 483. 10. Cro. Eliz. 560. Co, 2.) There being a judgment by default in this case, it is not be considered as if there was a verdict. It is rather like the se of a general demurrer to the assignments of the two first eaches. (2 Burr. 900. 10 East's Rep. 363.) But we con-id that the defect would not be cured by a verdict, had it me before the Court in that shape. (1 Saund. 228. n. 1. Saund. 178.)
    4. The bond being taken for more than double the amount the tax list, is not pursuant to the statute. It includes the mmutation of the two quakers, for which the sureties of the Hector were not liable. A failure of the collectorto pay over e amount of the tax list, is the only ground of forfeiture of the ind, according to the act; but the plaintiff claims the whole.
   Per Curiam.

Without going into a particular consideration all the points made on the argument of this cause, it is suffisnt for its determination to advert to one of them only, which decisive against the plaintiff in error. If we take into view e whole of the declaration and the breaches assigned, it is event that the plaintiff has, by the inquisition, recovered damais to which he is not entitled, either against the collector or his reties, namely, the fees of collection given by the statute to e collector. It is to be intended that the damages have been sessed on the breaches as assigned. We are, therefore, of opion that th,e judgment of the Court below ought to be affirmed,

Judgment affirmed.  