The act of 1826, «to authorize sheriffs to serve notices,” conferred upon that officer the power to execute all notices that may be necessary and proper in any suit in chancery, or in the circuit or county courts. [Aik. Dig. 280.] The statute of 1824, under which this proceeding was instituted, gives to the two last courts jurisdiction of a case of this character, where the amount sought to be recovered exceeds fifty dollars. There can then, be no doubt that the plaintiffs very properly addressed their notice to the sheriff to be executed.
In respect to the second objection to the notice, that it does not set out the first names of the' plaintiffs at length, we think it also unavailing. They are,it is fair to suppose, described by the name in which they do business together, and most probably designated as they were in the execution against Davis. At any rate, their names are set out in such a manner as to enable the defendants to understand who they are called on to answer.
The third objection is not sustained by the record, for it is explicitly alleged that the money was collected by Johnson, as a *530constable, in virtue of the execution, &c. If there were more statutes than one, on which a motion of this kind could be made in the Circuit court, then the notice should state under which it was made, but it being authorized alone by the act of 1824, [Aik. Dig. 175,] the defendant could not have been misled, but must have looked to that statute as prescribing the mode of procedure, and the measure of the recovery. This view disposes of the objections to the notice, and shows that they were rightly overruled.
The notice informs the defendants below that the plaintiffs will move for a judgment for the failure of Johnson to pay over the amount of an execution collected by him as constable. An issue was tried, which, as its terms .are not shown by the record, must at least be intended to, have been a denial and re-affirmance of these facts. This being the case, it was clearly incumbent on the plaintiffs to prove that if any money had been collected by Johnson, that it was received by him under the authority of the execution. Proof that he had levied an attachment, and that the defendant therein had placed in his hands money or property, in order to indemnify him for a liability incurred by the failure to take a replevying or bail bond, did not support the allegations of the notice, and could not, even according to the liberal rules of pleading, have authorized a recovery. But this is a case stric-tissimi juris, the statute under which it was commenced is exceedingly penal, inflicting upon the constable and his sureties for •the breach of duty alleged, damages on the amount collected at the rate of ten per cent, per month, up to the rendition of the judgment, and five per cent, per month thereafter till paid. It is needless to extend the consideration of'this point to greater length, as we have repeatedly held, that an officer is not liable by motion, under the statute for a failure to pay over money collected, unless it was received in-virtue of process in his hands, and in full force. Here, it is clear that money was not collected on the execution the attachment did not authorise its collection ; and even if it did, it was not paid to satisfy the plaintiffs demand, but to indemnify the constable. Johnson may have been liable to an action for a breach of duty, and the money or property received from Davis may perhaps have been recovered from him in some other proceeding. In refusing to instruct the jury as prayed, and in the charge given, it will follow from what has been said that the Circuit court erred. Its judgment is consequently reversed, and the cause remanded.. ;