
    
      THE MAYOR &c. v. DAVIS ET AL.
    In Debt on Bond.
    The Charter of the City of Newark requiring taxes when received by the Collector, to be paid to the Treasurer; a declaration charging him with a breach of his official bond, in not paying over such money to the Mayor <&c. is bad, on demurrer.
    This is an action on a bond given by the defendants to the Mayor Ac. of the city of Newark, in the penal sum of two thousand dollars, upon condition, “that if Samuel Davis, shall and do faithfully execute the duties of the office of Collector of the East Ward of the city of Newark, according to the laws in such case made and provided; then this obligation to be void: otherwise Ac.” The plaintiffs declare generally on the bond. The defendants plead, first, the general issue; and secondly, after craving Oyer and setting out the condition, they plead performance. To this second plea, the plaintiffs reply, assigning breaches as follows : First, that during the time that Davis was collector, he, as such collector, had received for and on account of the plaintiffs, large sums of money, to wit: seven thousand dollars ; yet that he hath not accounted for and paid the same to the said The Mayor, Ac.; but hath therein failed and made default ; and that the said sum. of money is still unpaid to the plaintiffs, contrary to the form and effect of the said bond Ac.
    The second breach assigned is, that said Davis, while such collector and as such, received large sums, to wi-t: seven thousand dollars, which were receivable according to law, by the said Davis, for taxes assessed and levied in the East Ward of the city of Newark; yet that the said Samuel Davis, although often requested Ac. had not accounted for and paid the same to the said The Mayor Ac. and concluding as before. To this replication the defendants demur generally.
    
      0. W. Hoisted in support of demurrer.
    
      1. H. Williamson, contra.
    
      
      OraIly decided at February Term, 1840.
    
   The opinion of the Court, by

IIornblower, C. J.

The single point arises on the 18th sec. of the charter of the city of Newark, Elm. Dig. 652, by which after authorizing the Common Council to raise money by taxes, and directing them to be received and collected by the collectors, it is enacted as. follows, “ which taxes when collected, shall he paid into the hands of the Treasurer of the said city, to be subject to the order of the said Common Council.” Hence it is insisted, that the breaches ought to have been, that Davis had not paid the moneys into the hands of the Treasurer; and we think in this, the defendants are right. The demurrer must therefore be sustained; but the plaintiffs are at liberty to amend their assignment of breaches, on payment of costs.

Demurrer sustained. Leave given to amend the assignment of the breaches, on payment of costs.  