The Treasurers vs. Stiles Rivers et al. Sureties of William Oswald, late Sheriff, 2 McMul. 207

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, distinguishes 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.