
    *John P. Lewis, &c. against William Little.
    on certiorari.
    Suit against the sureties of must be thetend°in the name oi anteof the" township, 
    
    THE plaintiff’s demand, in substance, sets forth, that on yie 2nd of February, 1816, he put into the hands of Benjamin R. Wolcott, then a constable, an execution against J°seph Vunlc, for 36 dollars, debt, and 75 cents, costs, which had been issued by Halsted Wainwright, esq.; that Wolcott received the money, but did not pay it over to the plaintiff; that he had left the state; that Lewis, the defendant, had placed himself in his situation, by being his security for his performance of his office as constable, and had agreed to have the matter settled before the justice. The whole amount of principal and interest; claimed, was 43 dollars, 56 cents.
    The ■ transcript stated, that “ the parties appeared and agreed to come to trial, by consent, without any process being issued.” There was verdict, and judgment for the plaintiff.
    It was objected by Lloyd, for plaintiff in certiorari,
    
    that, this was an action against one of the securities of a constablé, for neglecting to perform his duties, and that such action could only be brought on the bond given by the constable, to the township, &c.
    To this it was answered by Wall for defendant,
    in certiorari, that here the defendant below, the security, had consented to the bringing of the action.
    
      
      
         Boyd vs. Rose, 1 South. 230.
      
    
   Kirkpatrick C. J.

This is an action against Lewis, as the surety of Wolcott, a constable. It ought to have been brought on the bond given by the constable and his sureties, in the name of the inhabitants of the township, and not otherwise.

Southard J.

Consent will not cure the error; but here is no consent that the action should not be brought on the bond ; it is mere consent that suit might be commeneed without process, and leaves the defendant liberty to take every objection to the form of the action.

Judgment reversed.  