State ex rel. Bennett v. Engles

By the Court, Paschal, J. The only question which it becomes necessary for this Court to decide is, did the Circuit Court err in deciding the declaration of the plaintiff below to be insufficient in law? The declaration avers that the sheriff committed a breach of the condition of his bond, in that, after he levied execution in the usual form, in favor of the plaintiff in error v. Choate and Dye, on certain negroes, the property of one of them, he failed to sell the property as the law directs. We do not see that any cause of action is contained in this allegation. The execution requires the officer to' have the money before the Court, on the return day thereof; but there is no allegation that he did not so have the money. For anything that appears in the declaration, the defendants in execution may have paid the money, and released the property levied on. In declaring on an official bond, it is necessary, for the party alleging a breach, to set forth, distinctly and clearly, in what manner he has been damaged by the failure of the officer to perform his duty. Judgment affirmed.