
    Bernard, &c. vs. Johnston and wife.
    
      October 7.
    The amount of notes put into the hands of a confiable and Colle&eri, with, cut any prceefs to him dired^ed, cann t be recovered bv ?¿fcion on his cjfiu bond
    
   OPINION of the Court, bv

Judge Owsley.

— This was an action brought by the defendants in error on a constable’s bond. The plaintiffs in error having failed to,plead, judgment was had against them by default and a writ of inquiry awarded, and on the execution of the writ of inquiry seventy six pounds damages were assessed by the jit'}’, and judgment awarded accordingly. To revetse this judgment the plaintiffs in error have prosecuted this writ oi error.

The declaration is manifestly erroneous, and for that cause the judgment must be reversed. The ass gnment of breaches is evidently insufficient. They contain no allegation whereby it appears the condition of the constable’s bond has been broken. It is true it is alleged in the declaration that the constable received notes from Mr. Johnston, and collected the amount thereof, and has failed and refused to account and pay over the same but there is no averment in the declaration that by the condition of the bond the constable was bound to collect notes put into his hands, nor does it appear from any thing in the declaration what is the extent of the condition. If, however, the condition of the bond conforms to the requisitions of the law, it is clear ⅜ unless the me-bey was collected by the. constable under some legal process, that a failure to account therefor or pay the amount thereof cannot amount to a breach of tbe condi-tlon.

Whether, therefore, the declaration is considered as containing no allegation of the extent of the condition of the bond, or the assignment of breaches is made to apply to a condition such as the law prescribes, in either point of view the declaration is clearly defective.

I he objection taken to the bond in the assignment of errors, we have thought unnecessary to notice : for as the judgment must be reversed and the plaintiff in the .court below may have leave to amend his declaration, "fhat objection may be removed.

The judgment must be reversed with costs ; the cause anded to the court below, and the plaintiff there ve leave to amend his declaration, should he apply or leave so to do ; but should he not apply for such leave, that his suit be dismissed with costs.  