Commonwealth ex rel. Brown v. Fry

Maxwell, J. This was an action in the name of the Commmwealth of Virginia, for the use Brown, against Fry, sheriff of Kanawha county, and his securities, to recover damages for the failure of the said Fry and his deputy, Slack, to execute an attachment, sued out in a pending suit, in favor of the said Brown,-against John and G-. W. Montgomery. There was a demurrer to the declaration and to each assignment of breaches, which was overruled, and the first cause of error assigned here is, that the demurrer ought to have beefi sustained. The bond sued upon is described in the declaration, from [727] which it appears that it is conditioned as required by law for a sheriff’s bond; that the said Fry should faithfully discharge the duties of his office of sheriff of the county of Kanawha, for the term of two years. The rule is, where the condition of the bond provides for a single act to be done, the breach is well assigned if it he in the words of the condition, or words which import the same thing. But where the condition of the bond requires many things, the omission of any one of which would constitute a breach, a particular breach should be specified in the assignment. 1 Chitty’s Pleadings, 326; The People v. Brush, 6 Wendell, 454. The assignment of breaches is the-essence of the action on a sheriff’s bond. Ward & Ellzy v. Fairfax Justices, 4 Mun., 494; Woodson v. Johns, 3 Mun., 230. The breach must be stated according to the facts, and with certainty and particularity, that the defendants may know what they are called upon to answer. There are four assignments of breaches in the declaration in this case. They all aver either a failure to levy the attachment, or a failure to take the property into possession, after it. was levied upon, so that when final judgment was obtained against the said Montgomerys, there was no property found within the bailiwick of the said sheriff on which to levy the execution which issued on the said final judgment. There is no direct averment in any of the assignments of breaches, that any judgment was ever obtained, nor is there any sum stated, even by W’ay of recital, for which judgment was obtained. There is no averment that the property on which the sheriff and his deputy were required to levy, was of any value. It seems to me, that inasmuch as there is no averment in any of the assignments of breaches, that judgment was obtained for any sum, nor that the property to be levied upon was of some value, nor that the plaintiff, by reason of the failure to make such levy, sustained any damage, the as [728] signments are all fatally defective, and the demurrer should have been sustained. If the plaintiff obtained no judgment for any sum, be could sustain no damages by the failure of the sheriff to levy the attachment, and if the property to be levied upon was of no value, he could sustain no damage, although he might have obtained a judgment. Perkins v. Giles, 9 Leigh, 397. In this view of the case, it is not necessary to decide any other questions in it, yet, as a guide to the parties hereafter, it may be well enough to say, that there can be no doubt about the jurisdiction of the court in the case of Brown against The Montgomerys. The judgment complained of will have to be reversed, with costs to the plaintiffs in error, the demurrer sustained, and the cause remanded, with leave to amend the declaration, if the plaintiff wishes to amend. The other judges concurred. Judgment reversed.