Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-03-10
LEGAL.
Decisions Of the Supreme Court Ct
Tennessee, al Nashville, December
Term 1867.

TERM 1897
R,ported for the Union and Dispatch. by S. j.
Henderson. Attorney at Law.
In an action against a Constable for refusing to
nav money over according 20 the tsrms and
consideration Of his bond, 4 Is not necessary
for the plaintiff TO state "a the declaration the
precise amount collected, or from whom col
iected. The defendant is presumed 10 have
suffcient knowledge Of these facts &C. enable
him to make his defense.
Thomas Smith, executor, %. W. u Wilkinson
Ell ais.
This is an action Of covenant brought in
the Circuit Court Of Davidson against the
defendant and sureties az Constable. The
declaration alleges that Wilkinson was
duly elected Constable Of district No. 9, Of
Davidson county, and qualified by giving
bond, with the other defendants as his
sureties. on the 9th day of March,
1864, and he served 10 the full end Of the
term Of his Office, and that during the
last SIX months Of his said term Of
Office. and BY virtue Of his said Office he
collected the sum Of $675 20 for the plain
tiff. who was then alive and entitled 20 re-
ceive the same. The terms and conditions
Of the bond are ret forth that he, the said
Wilkinson, would faithfully discharge the
duties Of his Office, and pay over and ac-
count for all monies collected by virtue Of
his Office, 10 the person or persons author
lied to receive the same.
The declaration AYERS the said wilkinson
failed and refused to pay over the same,
either 10 the testator in his lifetime or 10
the plaintiff since his death. The defend
ants demurred 10 the declaration, and
signed as cause Of demurrer that the claim
IS alleged collected by the Constable is not
sufficiently described, and that defendants
are entitled to know by the pleadings what
claim was collected, 80 they can make their
defense. The court sustained the demurrer
from which the plaintiff appealed. The
question presented for our consideration is,
are the facts stated with sufficient certainty
in the declaration to maintain the action
We think they are. The rule as TO the
mode of stating facts is that they must be
set forth with certainty that is a clear and
distinct statement of the facts that consti-
tute the cause Of action. Chitty on plead
ings, 233. Less certainty is required when
the law presumes the knowledge of the
facts is more properly or peculiarly in the
opposite party. The plaintiff AYERS the
defendant collected the sum Of money
complained Of in the declaration. The
knowledge of the fact existed with the de-
PENDANT, aud the breach assigned is, that
he refused 10 pay it over according 10 the
terms and conditions of his bond. 1t was
held iu, a suit on an administrstoIs bond.
IL is sufficient for plaintiff to state that
goods, chattels and sums Of large amounts
had come into the hands Of the administra-
tor, which he had converted TO his own use,
the creditor not being presumed TO know
precisely what assets the administrator had
received, this fact lying more properly in
the knowledge Of the defendant; 18th
johnson Reports, 437. Mr.. Chitty in his
work on pleading, 235, says where the sub
iect comprehends multiplicity of matter
and a great variety of facts, then, in order
TO avoid proliIity, the law allows general
pleadings and charging in a declaration
that party has not accounted for sums of
money received in any particular capacity
from him. IL il sufficient 10 allege gener-
ally, that from time TO time he received
divers sums amounting TO a certain sum,
not stating on what particular days or from
named persons, and hath not accounted,
etc, etc. See also on this point Stephens on
pleadings, $3.50, and the authorities cited.
We think in this case the amounts are
sufficiently specific The defendant il al
legged TO have collected the money, as Con-
stable. belonging 10 plaintiffs testator,
which he failed and refused 20 pay. The
knowledge from whom he collected the
money rests with him sufficient 20 enable
him 10 make his defense. If he collected
the same the Circuit Judge erred in sus-
tanning the demurrer. The Judgment will
be reversed and the cause remsnded
SHACKELFRoD, Judge.