
    Charleston.
    Joseph Barrett et al. vs. Allen M. Smith.
    January Term, 1871.
    A notice to a constable and his sureties that intended to, hut in fact does not contain an averment that the constable received or collected any money on the claims placed in his hands by the plain tiff' for collection, is fatally defective.
    Notice to constable and sureties,filed in the circuit court of Boone county, in May, 1866, as follows:
    “To H. G-. Eips, former constable of Boone county, Joel E. Stollings, Joseph Barrett, Ezekiel S. Miller, Josph Adkins, survivors of themselves, and John Hill, deceased, as constable, given by you and your securities, bearing date on the 10th day of June, 1856:
    “ Take notice, that on the first day of the May term of the circuit court of Boone county, I shall move said court to reu-dep judgment against you, and each of you, for the sum of five hundred and sixty-five dollars and forty-three cents (565.43), with interest thereon, at the rate of fifteen per cent, per an-num, from the first day of October, 1859, till paid, subject to a credit for about sixty dollars, balance on a horse, receipted for on the 17th of February, 1859, or about that time, with the interest, as aforesaid, on the balance, being the balance on the amount of claims placed in his hands on the 18th day of August, 1856, for collection as constable as aforesaid, and which he has failed, and still fails, to pay over, as will fully appear by an acknowledgment in writing, signed by the said II. G-. Eips, in his official character, bearing date the 7th day of April, 1859, which is herewith filed, as well as a copy of the original claims receipted for on 18th August, 1856, by said H. G. Fips, constable of Boone county, as aforesaid, which balance, after all credits, money, receipts, &c., of every kind, is five hundred and sixty-five dollars and forty-three cents (565.43), with the interest, as aforesaid, subject to receipt of February, 1859, as aforesaid, and all errors, if any, to be corrected by agreement of the 7th of April, 1859, this, the 10th day of May, 1866.
    “A. M. Smith.”
    The notice was not served upon the constable, but upon the sureties, who moved to quash it, at May term, 1866. The motion to quash was overruled, and judgment given against the defendants for the amount claimed in the notice.
    The defendants brought the case here for review.
    Hon. 'William L. Hindman, judge of the circuit court of Boone county, presided on the trial- of the case.
    
      Lee and Ferguson for the plaintiffs in error.
    
      T. B. Swann for the defendant in error.
   Maxwell, J.

This was a notice against Fips, former constable of Boone county, and his sureties, for the failure of the said constable to pay over money.

The notice was not served on the constable, but on his sureties only, who appeared, and moved to quash it for insufficiency upon the face thereof.

The court overruled the motion to quash, and upon hearing such evidence as was offered, rendered a judgment against the defendants.

The first cause of error assigned here is, that the court erred in not quashing the notice.

The notice is intended to be for a failure of the constable to pay over money, received by him on claims, placed in his hands to be warranted for, but the notice contains no averment, nor any equivalent for such averment, that the constable received or collected any money or claims, placed in his bands by the plaintiff for collection.

The notice is, therefore, fatally defective, and should have been quashed.

The notice is also insufficient for several other reasons, but it is not necessary to refer to them, as this defect is fatal.

The judgment complained of will have to be reversed, at. the costs of the defendant in error, and the notice quashed.

The remaining members of the court concurred.

Judgment reversed.  