#### *The Treasurers vs. Stiles Rivers et al. Sureties of William Oswald, late Sheriff.*

In an action of debt, on a sheriff’s bond, where the defendants pleaded performance, *“*and the breach assigned by the plaintiff was, that it was the duty of the sheriff to collect and pay over all tax executions, which might be lodged, and that on the first day of June, 1835, there were tax executions to the amount of $1,739 78 lodged in his office, and that he did not collect and pay them over.” To the plea of performance, there was a replication by the plaintiff, and the defendants demurred specially, for the cause, that the tax executions malting the aggregate, were not specified. The demurrer was sustained, and the Appeal Court refused to reverse the decision.

*At Colleton, Spring Term, 1841*— Before O’Neall, J.

These were actions of debt on the official bond of Wm, Oswald, the late sheriff of Colleton district, during his term, commencing in 1825. The defendants pleaded performance, and the breach assigned, was, that it was his duty to collect and pay over all tax executions which might he lodged, and that on the first of June, 1825, there were tax executions to the amount of $1739 78, lodged in his office, and that he did not collect and pay them over. The defendants demurred specially, for the cause, that the tax executions, making the said aggregate, are not specified.

The Act of 1801, (Acts of 1801, p. 426,) directs that “ the tax collectors shall take the sheriff’s receipt for such executions for taxes as they may have lodged with him ; which receipt they shall produce in settlement with the Treasurer; and it shall be the duty of the Treasurer to transmit without delay, to the Comptroller, certified copies of all such receipts, to the end that he may he enabled to inspect the conduct of the sheriff thereon.” The Act of 1813, (Acts of 1813, p. 21,) provides, that the sheriffs, within ninety days after the lodgment of tax executions, “ shall make to the Comptroller a full and complete return .thereof;” and failing to do so, the Comptroller is directed to *“*cause him to be debited in the books of the Treasury, with the full amount of his receipts and the Act declares, that he shall not afterwards be entitled to any credit for executions by him- afterwards returned “ *nulla bona,”*or “ *non est*inventus.”

*208It was under this last Act, that the Solicitor undertook to support his replication. The Court ruled, that it derived no aid from it. If his replication had set out, that the sheriff stood debited on the books of the treasury to the amount of $1739 78, for tax executions lodged, and not returned, as by his receipt of the first June, 1825, and that he had failed to pay this sum, then it might have been a breach well assigned under the Act. But as the replication now stands, it charges the lodgment of sundry tax executions to the amount of $1739 78, and that they were not collected and paid over. This breach, it will be observed, does not complain that they were not returned within ninety days after lodgment, but proceeds on the general liability of the sheriff for not collecting and paying over. The object of pleading, is to narrow the grounds between the parties in its several stages, and to reduce general charges to more definiteness and precision, as the parties continue to plead, so that the defendants may know the very matter with which the plaintiff proposes to charge them. The replication here leaves everything uncertain. - The demurrer was sustained. The plaintiffs appeal, on the ground that the decision was contrary to law.

Caria, *per*

O’Neall, J.

This Court concurs in the judgment below. It is plain that the breach assigned-, does not make the sheriff liable for the tax executions lodged. For it is not his duty to collect and pay over in all cases; it is his duty to collect, if he can, and when collected, to pay over — but if he cannot collect, it is his duty to return “ *nulla bona,”*or “ *non est inventus ;”*and if he so does his duty, he is discharged. For anything which appears on the face of the replication, the sheriff may have, within proper time, returned every execution lodged with him, *“nulla bona”*or *"non est inventus.”*

Independent, however, of this,-1 think when the plaintiff’s cause of action embraces many items or subjects of the same kind, and to each of them, if particularized, the defendant may have a defence, of which he could not avail himself, by a general answer to the replication, then it ought to set out the particulars. This, I think, distin*209guishes this case from the rule so well and correctly stated in 2 Saunders, 411, note 4.

Edwards *for the motion.*

Rhett, *contra.*

Here the defendant’s principal may have paid over some of the executions — some he may have returned “ *nulla bona,”*some he may have returned “ *non est*inventus.” Here are three distinct defences, which could not come in under a general traverse of the replication. Hence the necessity for more particularity, and a clear assignment of the particulars in which the sheriff failed to do his duty.

The motion is dismissed.

We concur. J. S. Richardson, Josiah J. Evans, A. P. Butler, I). L. Wardlaw.