Dinguid v. Curd's Exors.

3 Ky. Op. 514, 1870 Ky. LEXIS 173

• Court: Court of Appeals of Kentucky
• Decided: February 26, 1870
• Status: Published

Opinion

Opinion of the Court by

Judge Williams:

This is a suit on a constable’s bond against appellants as his securities with the averment that said constable was elected to said office and executed said bond June 1, 1859, whilst the receipt for the collection of the debts bears date of April 1, 1859, or two months previous to the date' of the bond. There is no averment that Clayton, when he executed said receipt was a constable, and subsequently, and before he collected the debts, was re-elected and that he then had said debts in his hands as such constable when he executed said bond, sued on and by reason of the non-performance of his official duties, said debts remained uncollected, and had been lost, or that he had collected the same and failed to pay over to said plaintiffs.

The averment should specify each debt and the reason of the constable’s liability therefor, and whether because of its loss by reason of Ms non-performance of duty and failure to collect whilst the debtor was solvent, etc., or whether the debt had been collected by him, which he had failed to pay over.

Holt, for appellant Bush, for appellee.

Even by the most liberal intendment, the essential facts to make these securities liable are not averred, hence, no cause of action is shown whereon to predicate a judgment by default. Wherefore, the judgment is reversed, with directions to allow the plaintiff to amend his pleadings, should he offer to do so within reasonable time.