This was an action of debt against a constable and his sureties on his official bond, conditioned, in the usual form, for the payment over of all moneys collected, and for the discharge of his duties generally. The declaration, after setting out the bond and condition, and reciting two judgments recovered by the relator, Johnson, before a justice of the peace, and executions offi.fa. issued thereon, and the delivery of the .latter to the constable to be collected, assigns for breach of the condition of the bond, in reference to each execution, that the
In our opinion the judgment is right. The declaration shows no violation of duty on the part of the constable. The mere failure to make the money on the execution is not sufficient to charge him. The declaration should have averred, that the execution-debtor had property on which the constable might have levied, 1 Chitt. Pl., 138; Stark. Ev., part 4, 1344; 2 Chitt. Pl., 750; Jones v. Clayton, 4 M. & S., 349.
Per Curiam.—The judgment is affirmed at the costs of the relator.