
    James M. Lawson's Admr. v. B. F. Doty
    Judgment hy Default — Pleadings—Sufficiency of Petition — Administrator— Action Against.
    A petition was filed against the sureties on a constable’s bond, and against the administrator of the deceased constable, for failure to pay over money collected on claims put in his hands for collection as constable. No defense was made to the action, and a personal judgment was rendered against the administrator and the two sureties: Held that
    without allegation or proof that any assets came into the hands of the administrator, it was erroneous to render a judgment against him, and even with such proof the judgment against him could be only for the debt, interest and costs to be levied of assets in 'his hands to be administered.
    APPEAL PROM GARRARD CIRCUIT COURT.
    December 6, 1867.
   Opinion op the Oourt by

Judge Peters:

This action was brought against James M. Lawson, Wm. Mc-Carby and Wyatt Parkins, on the official bond of Lawson as Constable of Garrard county, the other two being his sureties, for failure to pay over money collected on claims put in his hands for collection as Constable as aforesaid.

After the institution of the suit, the principal in the bond died, and the action was revived against Wm. Lawson, Admr. of James M. Lawson deceased. No defense was made to the action, and a personal judgment was rendered against Wm. Lawson Admr., and the two sureties for the sum claimed in the petition and $15.40 ten per centum damages on the same. And from that judgment the defendants below have appealed.

The judgment is complained of because there is neither allegation nor proof that, any assets came to the hands of the Admr., and that the judgment is personal against him. Certainly without such allegation and proof if it had been controverted by an answer it was erroneous to render judgment against Lawson; and with the proper allegation and proof the judgment against the Admr. could only have been for the debt, interest, costs and damages, to be levied of assets in his hands to be administered. Bott’s Admr. vs. Fitzpatrick, 5 Mon. 897.

Bradley, for appellant.

Anderson, for .appellee.

Wherefore the judgment is reversed and the canse remanded with directions .for further proceedings consistent herewith.  