
    OCTOBER 27, 1803.
    Simon Adams v. Thomas Chaffin.
    
      Upon a writ of error to reverse a judgment of the Franklin District Gourt.
    
    1. A declaration upon an assumpsit which assigns no breach of the assumpsit is had.
    2. Where judgment goes against the principal, and property is" taken in execution thereof, nó judgment can go against the surety until the property so taken is legally accounted for.
   The three first, fifth and seventh errors alleged are, in substance, that no evidence was produced in the court below to support the second count in the declaration, and that the first count is wholly insufficient to entitle the plaintiff in that court to recover, because it contains no cause of action, no breach being assigned therein of the assumpsit which is alleged; and further, that the sheriff’s returns on the executions Chaffin against Kennedy ought to have been a bar to any recovery against Adams, until the property taken by virtue thereof was legally accounted for, and that his motion for a new trial was improperly overruled. This court finds, from the declaration, and the exceptions taken on behalf of Adams, that all these allegations are well founded, and, therefore, the judgment is erroneous.

Wherefore, it 3s considered by the court, that the judgment aforesaid be reversed, annulled, and set aside, that the cause be remanded to the general court, for new proceedings to be had therein, to commence by amending the declaration, and that the plaintiff recover of the defendant his costs in this behalf expended, which is ordered to be certified to the said general court.  