Barrett v. Smith

4 W. Va. 709

• Court: West Virginia Supreme Court
• Decided: January 15, 1871
• Status: Published

Opinion

Maxwell, J.

This was a notice against Fips, former constable of Boone county, and his sureties, for the failure of the said constable to pay over money.

The notice was not served on the constable, but on his sureties only, who appeared, and moved to quash it for insufficiency upon the face thereof.

The court overruled the motion to quash, and upon hearing such evidence as was offered, rendered a judgment against the defendants.

The first cause of error assigned here is, that the court erred in not quashing the notice.

The notice is intended to be for a failure of the constable to pay over money, received by him on claims, placed in his hands to be warranted for, but the notice contains no averment, nor any equivalent for such averment, that the constable received or collected any money or claims, placed in his bands by the plaintiff for collection.

The notice is, therefore, fatally defective, and should have been quashed.

The notice is also insufficient for several other reasons, but it is not necessary to refer to them, as this defect is fatal.

The judgment complained of will have to be reversed, at. the costs of the defendant in error, and the notice quashed.

The remaining members of the court concurred.

Judgment reversed.