
    Cannon, adm'r. vs. Snowdon et als.
    
    Where a Constable’s bond is taken, payable to the Governor, for the tíme being’, and Ins successors in office, the right to sue vests in the successor, and not in the personal representative of the deceased; and if the bond be not statutory, and suit be brought in the name of the personal representative, the facts which give the right to the personal representative to sue must be exhibited in the declaration or a demurrer lies.
    This is an appeal from the judgment of the Circuit Court of Wayne county.
    
      Rose, for plaintiff.
    It is objected, that the declaration shows that the bond is payable to Newton Cannon, Governor, and his successors in office, and the action is brought byjRachel Cannon, administratrix. In the case of Polk, Gov. vs. Plummer and others, 2 Hump. 500, this court decided that the office was the payee in all bonds taken for the public benefit, and not the person of the Governor; but it does not necessarily follow, that the bond would go in succession; because, if not a statutory bond, the legal title would be in the person of the Governor, and go to the legal representative. The requisitions of the statute must be complied with in all essential points, to make it a good statutory bond. 6 Yerg. 363. And the only difficulty in this case seems to be, to determine whether or not this bond is statutory. It is said that the description in the declaration shows it to be a statutory bond. But this is denied. The declaration does not disclose facts sufficient to show a compliance with the statute in all essential points. 2 Yerg. 113; 6 Yerg. 363. The words in the declaration, “Governor of the State for the time being, and his successors in office,” may be well rejected as surplusage. 11 East, 62; 3 Bar. & Adol. 655; 1 Term Rep. 235; 7 John. Rep. 462; 13 John. Rep. 80; 1 Chitty’s Plead. 263; 8 Cowen’s Rep. 42; 2 Hump. 506.
    It is insisted, that if the bond is a statutory bond, the defendant should have craved oyer and set out the bond, and condition, and demurred. 2 Saunders, 60, (note 3); 2 Term R. 575; 8 John. Rep. 410. The proferí in the declaration does not make the bond a part of the declaration, and this court cannot by an inspection of the record, see that the bond is taken in compliance with the requisition of the statute, and if the bond is not statutory; the suit should be brought in the name of Newton Cannon, or his personal representative. Tibbitts vs. Canada, 10 Yerg. Rep. 465.
    Itis insisted, that the defendants should have pleaded specially, in defence, that the bond sued upon, was a statutory bond, and have set the same out in a special plea, so the court, upon a demurrer to the plea, would have had the question fairly before it, or so the plaintiff could have replied by tendering an issue, either to the country or court.
    It is also insisted, that the plaintiff had a right to select the form of action, or in other words, the action would have been properly brought, either in the name of the • successor of Governor Cannon or his legal representative. 10 John. Rep. 400; 13 Mass. Rep. 477, and authorities there refered to.
    
      B. S. Alim and Nicholson, for defendants.
   Reese, J.

delivered the opinion of the court.

This is an action of covenant, brought by the personal representative of Newton Cannon against Hollis and his sureties as Constable.

The declaration sets out the bond which was signed and sealed by the parties defendant, and by which they acknowledged themselves to be held and firmly bound unto Newton Cannon, Governor of'the State of Tennessee, and his successors in office, in the sum of, &c. And proceeds to describe a good official and statutory bond of a Constable. The defendant demurred, upon the ground mentioned in aprevious case, and determined in the case of the Union BanTcvs. Plummer, that these official bonds, taken to persons in office, having succession, vest in the "office, and do not, and cannot vest in the person of the incumbent. The Circuit Court sustained the demurrer, and the plaintiff has appealed to this court in error.

The principle upon which the judgment of the Circuit Court was founded, has not been questioned by the plaintiff’s counsel, but it is contended, that the bond might not have been taken by and acknowledged before the county court, and might not therefore be statutory. This is possible, but not shown. The declaration contains all which would be necessary to maintain the action as a statutory bond. It is upon the face of it, and as described a statutory bond. Prima facie it vests- in, and belongs to the successor of Newton Cannon, to the office. And those, therefore, who alledge the title of Mrs. Cannon, the personal representative of the private individual, Newton Cannon, must show the grounds upon which that title exists. Having stated such facts as vest the title elsewhere, they must not stop there, but state also those facts which bring back their title again, and revest it. This they have not done.

The demurrer, therefore, was properly taken, and correctly sustained, and the judgment of the Circuit Court will be affirmed.  