
    The Governor, for the benefit of Thomas Hannah, vs. Benjamin Perkins.
    An action wiJI lie againft ihe~ riff and his is-curities jointly, on his bond of office, before a feparate fait >> brought againfc the dieriff.
    That officers fees called fee-Hills, to the amount of 17/ were delivered to the iheriff to collect, & that he failed to account for them, h a fufficienfr breach without? fpecifying the. particular kia4 of feebills.
    The Chief Juftice abfent.
   OPINION of the Court, by

Judge Clark.

— This was an action of debt in the name of Charles Scott, governor of Kentucky, for the benefit of Thomas Hannah, against Benjamin Perkins, one ol the securities of Stephen Perkins, former sheriff of Garrard county. The declaration, after setting out the bond, contains the following averment: “ That the said Thomas Hannah, late sheriff of Mercer county, on the 15th day of April in the year of our Lord 1800, did deliver into the hands of the said Stephen Perkins officers’ fees, commonly called feebills, to the amount of 17/ 3s and 6<⅜ which he agreed to account for according to law.”- The breach is assigned in his failing to pay over the money. To. this declaration there was a special demurrer and judgment for the defendant : to which judgment the plaintiff prosecutes this writ of error.

The declaration in this case we think substantially ¿ood, and ought to have been so adjudged by.the infs-rior court. The causes assigned for sustaining the defendant’s demurrer are — 1st, That it did not appear that a suit had been prosecuted to judgment against Stephen Perkins, the principal; and 2d, The declaration contained no averment of the kind of feebills which had been put into the hands of the sheriff for collection.

The bond is joint and several, one of the conditions of which is that Stephen Perkins, the sheriff, should collect and account for ail officers’ fees put into his hands for collection. It was not necessary to bring a suit against the principal in the first instance. The parties have agreed to bind themselves either jointly or severally, and an action may be brought against all or any one of them. The act of assembly under which the bond was taken, does not require a suit against the principal, before the securities can be charged : they must therefore answer as they have bound themselves in their bond, either jointly or severally.

As to the second point, that which is apparent to the court, or appears from a necessary implication in the record, need not be averred. The declaration, after setting forth the condition of the bond, from which it appears the sheriff was to collect and account for ail officers’ fees put into his hands for collection, avers “ that the said Thomas Hannah, late sheriff of Mercer county, on the 15th day of April 1800, did deliver into the hands of the said Stephen Perkins officers’ fees, commonly called feebills, to the amount of,” &c. which he agreed to collect and account for agreeable to law. It was the duty of the sheriff to collect and account fir the fees of other sheriffs put into his hands for collection, as well as the fees of clerks and surveyors. Clerks’' and surveyors’fees are not assignable by law. Han. nah, then, as former sheriff of Mercer county, could put no feebills for collection into the hands of Perkins, which by law he would be bound to collect and account to him for, except sheriff’s fees.

Wherefore it is considered by the court that the judgment of the said circuit court be reversed, and the cause remanded to said court, with directions to per-, nait the defendant to withdraw his demurrer and plead,: to the action, if he should wish to do so, and if natpttS eater judgment for the plaintiff on the demurrer.  