
    Branch & al. v. Randolph.
    [November, 1805.]
    Sheriffs Bond — Action—Assignment of Breaches.— Upon a sheriffl’s bond for collection of taxes, a ■ general assignment of breaches in the words of the bond, is sufficient after a writ of enguiry executed.
    Same — To Whom Made Payable. — Under the ordinance of convention, and the act of 1782, the sheriff’s bond was properly made payable to the governour.
    Taxes — Recovery in Name of Governour. — Taxes collected, might, under the acts of 1794, 1798, have been recovered in the name of the governour.
    ' Branch and others entered into a bond, on the Sth of March, 1784, to Benjamin Harrison, .as governour of the state, and his successors, in ^10,000, with the followiug condition annexed, viz. “ The condition of the above obligation is such, that if the above bound Benjamin Branch do, and-shall truly and faithfully collect, pay and account for all taxes imposed in this said county, by virtue of an act of assembly intituled, ‘ an act to •amend and reduce the several acts of assembly for ascertaining certain taxes and duties, and for establishing a permanent revenue, into one act,’ then the above obligation to be void, otherwise to remain in full force and virtue.”
    Upon the foregoing bond, a suit was brought in the name of Edward Randolph, esqr., governour of Virginia, who succeeded ^Patrick Henry, esqr., successor of Benjamin Harrison, esquire ; and the only breach assigned was, “ that the said Benjamin Branch hath not truly and faithfully collected, paid and accounted for all taxes imposed in this said county, by virtue of an act of assembly entitled, ‘ an act to amend and reduce the several acts of assembly for ascertaining, certain taxes and duties, and for establishing a permanent revenue, into one act,’ but hath altogether failed to do-so.”
    The defendants having made default, damages were assessed upon a writ of enquiry; and the general court gave judgment for the plaintiff accordingly.
    From which judgment, the executors of Branch appealed to the court of appeals.
    Randolph, for the appellants.
    .The appellants wer.e .not liable upon the bond ; but the plaintiff’s remedy, was an action upon the case. The breach is not well assigned; for the delinquency ought to have been specially set forth ; and the omission to do so, put it out of the power of the defendant to make defence, or to plead the judgment in bar of another action for the same thing] Esp. Nis. Pri. 229.
    Nicholas, attorney general, contra.
    The sheriff remained in office after the taxes of 1785 were due : and the condition of the bond is for .collecting the taxes generally ; which applied to all that fell due during the years he was in office. The breach assigned extends to an averment of non-performance of any of the conditions of the bond ; and nothing more special can be required.
    Cur. adv. vult.
    
      
      Action on Bond — Assignment of Breaches. — In Wheeling v. Black, 25 W. Va. 273, Judge'Snyder, delivering the opinion of the court, said : “Several objections are alleged to the general assignment. It may be stated as the general rule, especially in this state, as inherited from the state of Virginia, that the breaches will be sufficiently assigned by negativing the words of the condition of the bond sued on. Branch v. Randolph, 5 Call 546 ; Craghill v. Page, 2 H. & M. 446 ; Hughes v. Smith, 5 Johns. 173 ; People v. Brush, 6 Wend. 456; 1 Chitty Pl. 612 ; 2 Swand. 181; Martyn v. Cline. 83 Eng. C. L. R. 681.”
      See monographic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.
    
   TUCKER, Judge.

I am of opinion that the assignment of the breach in the words of the obligation, is not too general; and it has been so decided, but I do not recollect the case.

Upon examining the several acts of assembly for imposing and collecting taxes, I am of opinion, that Branch was liable for the half tax due the 1st of May, 1785 : and that if there *is any error in the amount of the judgments, the party must seek relief in a court of equity.

Under the ordinance of convention, May 1776, ch. 5, sect. 8, and the act of assembly of October 1782, ch. 39, the bond was properly taken, payable to the governour.

But, if it had been otherwise, the taxes pol-lected might have been recovered by a suit in the name of the governour, for the use of the commonwealth, under the special provisions contained in the acts of 1794, ch. 84, sect. 4, and ch. 143 ; and the act of 1798, ch. 19. Although the first of those laws gave the remedy on motion, or by special action on the case, the mode pursued in this case was more beneficial for the defendants than the former ; and the form of the action is perhaps not material.

I am, therefore, of opinion, that the judgment should be affirmed.

PLEMING, Judge, CARRINGTON, Judge, and LYONS, President, were all of the same opinion ; and the judgment was accordingly affirmed.  