
    [Pittsburg,
    September 26, 1825.]
    BROWNFIELD against The Commonwealth, for the use of SARAH DOWNARD.
    IN ERROR.
    In a suit on the official bond of a sheriff, the plaintiff is not obliged to prove that the sheriff was afterwards commissioned; such defence arises under the proviso in the act of assembly, and the defendant must plead it.
    If there are in such suit any breaches assigned in the declaration, on which the plaintiff has no right to recover, the judgment is erroneous, inasmuch as such suit is only for the use of the party suing.
    This was a-writ of errror to the Court of Common Pleas of Fayette county.
    The suit was in debt, in the name of the Commonwealth, for he use of Sarah Downard against Thomas Brownfield, one of the sureties of Daniel P. Lynch, late sheriff of Fayette county, upon the bond given by the sheriff, and his sureties, in the sum of ten thousand dollars for the performance of his official duties, agreeably to the act of assembly.
    The declaration, after reciting the bond and condition, stated that a bill of indictment was found at the March sessions, 1822, in the Court of Quarter Sessions of Fayette county, against John Allison, for fornication and bastardy, on the body of Sarah Downard, to which the defendant pleaded “ guilty.” Whereupon, it was considered by the court that the said John Allison pay a fine of ten pounds for the use of the county, five pounds lying-in expenses, (to the said Sarah,) thirteen dollars for expenses already incurred in maintaining the child, (to the said Sarah,) fifty cents a week for its further support, (meaning the child of the said Sarah, by the said John begotten,) until it arrives to the age of four years, if it lives so long; that he give security to indemnify the place where the child was born; and to perform such order for the maintenance of the child, as the Court may hereafter direct and appoint, to pay the costs of prosecution, and stand committed until the said sentence be complied with. By virtue of which, said sentence, judgment, and order of the same court, to wit, the 7th day of March, in the year, &c. &c., Daniel P. Lynch, aforesaid, then sheriff of the said county being, did take and arrest, and the same John Allison in his custody, then and there had and imprisoned, in execution of.the said sentence, for the fine, and allowances, and costs, aforesaid. And the said Commonwealth in fact saith that afterwards, to wit, on the said 7th day of March, in the year, &c., at &c., the aforesaid Daniel P. Lynch, (the same Daniel P. Lynch, then sheriff of the said county being, and the said John Allison, in his custody, for the cause aforesaid, being,) the same John Allison, at the county aforesaid, out of his custody, (the said Sarah of her lying-in expenses, and allowance of thirteen dollars for expences then incurred, not being satisfied, and the said John Allison not having given security for the maintenance of the said child, as the court might thereafter direct and appoint, and the said John not having paid to the said Sarah the sum of fifty cents per week, until the said child should arrive at the age of four years, amounting to a large sum, to wit, one hundred dollars ; and the said John not having paid the costs of prosecution, amounting to a large sum, to wit, ten dollars;) at large, whither he would, to go and escape, did permit.
    By which action hath accrued to the said Commonwealth, to have of the said Thomas the aforesaid sum of ten thousand dollars, nevertheless, &c.
    An award of arbitrators was made in favour of the plaintiff, for , the sum of eighty dollars and sixty-nine cents, on which judgment was rendered.
    The following errors were assigned by the plaintiff in error:
    1st. That the declaration ought to state that Daniel P. Lynch, after giving the bond, was duly commissioned, as the act of assembly declares that the bond shall be void, unless the person giving it be afterwards commissioned.
    2d. That the age of the child does not appear, nor consequently when the weekly allowance would cease.
    3d. That it does not appear, that the child was still living, and upon its life the weekly allowance depended.
    4th. That the cestui que use of the plaintiff below, claims damages for breaches in which she'has no concern, as the not giving of security, and the non-payment of costs of prosecution.
    5th. That she claims the weekly allowance for the whole period, when but a small part of the time had run at the commmencement of the suit; and the whole might never become due, as the child might die before the expiration of the period.
    6th. That it does not appear that she was entitled to the weekly allowance ; it being given, not for her use, but for the maintenance of the child. ■
    
      Ewing and Kennedy, for the plaintiff in error.
    
      Dawson and Erwin, contra.
   The opinion of the court was delivered by

Gibson, ,T.

The objection that the bond should not have been considered as obligatory, because it did not appear that Lynch had been commissioned, as sheriff, after it was delivered, has been properly abandoned. The responsibility of the defendant was prima facia complete by the terms of the bond, and could be dissolved, only by the contingency mentioned in the proviso of the third section of the act, which required the bond to be given; and which declares that no recognizance or obligation of the kind shall be of force, unless the party elected shall be commissioned: and it is indisputable that a party, claiming the benefit of a proviso or exception, must bring himself within it by pleading. Here the defendant, by omitting to plead that Lynch was not commissioned, has admitted the fact to be otherwise.

Objections are'made to the assignment of breaches, that the age of the child is not set out, nor consequently the period when the weekly allowance was to cease; that it does not appear the mother was entitled to any part of the allowance, because it is not averred that she sustained the child for any particular period, or at all, or even that it is living; and that she has assigned, as breaches, matters which do not concern her, as, for instance, the omitting to indemnify the township, or pay the costs of prosecution.

"Were this like an administration bond, on which the judgment in favour of the commonwealth is cautionary, for those who may afterwards prosecute, each for his particular injury by scire facias,Une assigning of other breaches, than those in which the party-had an interest, would be immaterial, if it appeared he had an interest in any one breach, which entitled him to call on the commonwealth to prosecute for a forfeiture of the bond; because the damages being nominal, there would be no presumption that the jury gave damages to which he was not entitled ; and so the error would be without injury. But here the plaintiff recovers her damages in the first instance; and if the breach as assigned, be as large as the condition, which is not all to be performed for her benefit, it is impossible to say that the jury may not have given damages for what was no injury to her. Her title to sue, in the name of the commonwealth, is only co-extensive with the injury she has sustained; and although there may be other breaches, which are a forfeiture of the bond in respect of other suitors, she cannot call on the commonwealth to sue for them ; the latter being a trustee for her no further than to procure compensation for actual injury. If then she has assigned breaches which give her no right of action, the presumption is that the jury have assessed damages on them; and if so, the declaration is ill for .the same reason that it is ill in an action of covenant, where the breach is larger than the covenant. Now, the plaintiff was entitled to the allowance only for the period during which she had sustained the child, befqre the suit was brought: and as to indemnity to the township, or payment of the . costs of prosecution, these were matters with which she could, in no shape, have the least concern ; and it is, therefore, too clear for a doiibtthat the declaration cannot be supported.

Judgment reversed..  