The Governor, for use, &c., vs. Pleasants et al., 4 Ark. 193

By the Court, Lacy, J. The questions raised upon the assignments of the demurrer are most? if not all of them, frivolous; but, whether good or bad, are merely matters in abatement, and therefore could not be taken advantage of upon demurrer. The declaration contains two breaches. The first charges the sheriff for collecting the money and failing to pay it over, upon the execution. This breach contains no demand and refusal, and of course would b'e held to be bad.

There is no cause of action accruing against the sheriff, in this form of action, for his collecting of money and failing to pay it over, unless the plaintiff avers a demand and refusal. The second breach charges the sheriff with a failure to return the execution according to law. We hold this breach to be good. The words of our statute expressly make him liable, if he fails to return the execution, or makes a false return.

The act declares, that, “ if any officer shall not return any execution that comes to his hands, on or before the return day therein specified, or shall make a false return thereof, he shall be held liable, and bound to pay the whole amount of money in such execution.” Language cannot be more explicit or peremptory than this. The second breach is, therefore, properly assigned. Judgment reversed.