The opinion of the Court was delivered by

The replication in this case is not drawn with any technical accuracy, either as to the matter or form ; still if we can find a breach sufficiently alledged, without admitting too great a latitude of intendment, the judgment of the County Court ought to be supported ; but, on examination, we are sorry to find that this is hnpossible.

Some of the exceptions, however, which have been taken by the plaintiff, in error, are not well founded. It was not necessary, in assigning the breach, in this case, to set forth that a demand had been made, by the creditor on the deputy Sheriff, to pay over the money, however necessary that might be in a suit in favor of the creditor against the officer. It was also unnecessary to set out the judgment, on which the execution issued. The action was not on the judgment. — The plaintiff below, was not privy to the judgment? and the defendant below would not have been entitled to oyer. But it was necessary to set forth that the execution was issued on a judgment of some court: in this case, it is supposed to have been a judgment of Addison County Court, this is intimated by the manner in which the execution is set out. It should also have been averred, that the execution was delivered to the Sheriff, by the creditor^ to collect, otherwise it cannot appear that the Sheriff had any official concern with it. The replication should also have set forth¡, when the execution was returnable, and, in strictness, that it was delivered to the defendant, (or, as it is that he received it) to serve, execute, collect and return according to law. There is nothing of all thi's in the replication. It is not averred, that the deputy neglected to levy, collect or return the execution. But, it is, in some sort averred, that the deputy did not pay over the whole amount of the execution, by an averment, that “ the said R. R. Childs, hath never accounted for said execution, and hath paid only ninety seven dollars in pat t satisfaction thereof.” It ought to have been directly-averred, that the deputy neglected to serve, collect or return saicl execution according to law ; or that he had levied and collected the amount of said execution, and had neglected to pay over the same; that, by reason of such neglect, the Sheriff became liable; of all *233which there is not a word in the replication. The replication ought then to have set forth, that, in consequence of such neglect oí the deputy, the creditor commenced an action against the Sheriff, at a court, &c. In which action such proceedings were had, and suffered, that, at such a term of said Court, judgment was rendered in such action against the Sheriff’ for such a sum, and thence to deduce, that the Sheriff was damnified. Instead of which, there is introduced into the replication, the following brief statement. “ And the said Arana W. Hide as aforesaid, hath been sued for the neglect of the said R. R. Childs, in not returning, collecting and paying over said execution, at the County Court holden at Rutland, within and for the county of Rutland, on the third Monday of November, 1810, and a judgment in said suit had against him, for the sum of $40,99 cents damages, and for the sum of $11,95, cents costs of suit. We may, indeed, collect, from this loose sketch, that the suit here mentioned, was in favor of the creditor, for we cannot suppose, that any other person could have been advised to bring an action for that cause, but, this is too loose in a plea. What follows, of a nonest of the execution, on that judgment — of a suit and judgment against the Sheriff’s bail, is surplussage at least.

On the whole the Court, find it impossible to support the judgment of the County Court, it must therefore be reversed.