By the Court,
Lacy, J.We have looked into the declaration in . this case, and consider it good; the breaches are properly assigned; the sheriff is charged with collecting a certain amount of money, which he failed to pay over. The truth of this breach the plaintiff was bound to prove. It was not necessary to allege the collection of the money, and failure to pay it over. He was answerable, upon the reception of the tax book. That fixed the amount of his responsibility,' which he, in his defence, could lessen, by striking off the credits to which he might, by law, be entitled. In this case, however, by the breaches, the sheriff’s liability is made to depend exclusively upon the collection and failure to pay over. The transcript offered in evidence was, certainly, not sufficient to establish his indebtedness upon this charge. It certainly did not prove that the sheriff had made any collections, or had any moneys in his hands belonging to the county. It would have been proper evidence, if he had been simply charged, upon his reception of the tax book, with the failure to pay over the amount with which he stood charged, a proper ground being laid for the introduction of this secondary grade of evidence, by establishing the fact that the best evidence had been lost or destroyed. It is clear, that'the instructions given and refused are manifestly erroneous. * The court seems to have proceeded upon the mistaken opinion that, under the state of pleadings, the sheriff and his securities were liable upon the reception of the tax book. The defendants only asked the court to instruct the jury that, if he had collected any money, as sheriff, and had failed to pay it over, then he was answerable for that amount, ' and nothing more. This was only requiring the plaintiff to prove her cause of action, as laid, which she was unquestionably bound to do, before she could be ’ entitled to á recovery. The instructions given and those refused, were clearly wrong.
Judgment reversed.