
    Commonwealth for use of O. C. Bowles v. W. P. Johnson, etc.
    Sheriffs and Constable — Failure to Return Execution — Official Bond— Suit on.
    The bond sued on in this case was executed in the year 1866. The failure to return the execution complained of did not occur until August, 1867. It will be presumed that the sheriff entered upon his second term in January, 1867, and that the county court required him to execute a new bond at the time. This suit should have been brought on the last-named bond.
    APPEAL FROM PIKE CIRCUIT COURT.
    October 9, 1871.
    
      
      Burns, for appellant.
    
    
      Apperson, for appellees.
    
   Opinion by

Judge Lindsay:

The bond sued on in this case was executed in the year 1866. The failure to return the execution complained of did not occur until August, 1867. We must presume that Johnson entered upon his second term as sheriff in January, 1867, as provided by the Constitution, and that the county court of Pike county in pursuance to law required 'him to execute an official bond at that time. The suit should have been upon that bond and not on the one made the basis of this action.

The relief sought was a statutory penalty, and as the action was founded on the wrong bond no judgment could be rendered even against the sheriff. The demurrer to the petition was properly sustained.

Judgment affirmed.  