dissenting. As the foundation of my reasons *435for dissenting from my brethren, in ibis caso, I would take notice of two law principles:—
1. That every declaration is to be taken most strongly against him who declares; and nothing is to be taken in favor of it, by implication, except what is necessarily implied.
2. That where the construction is doubtful, it shall be in favor of the defendant.
It is admitted,-that the averments in this declaration are not so explicit as they might have been.— It is further admitted, in this case, that the person who served the writ and took the bail bond, was not a common legal officer authorized to servo writs, as sheriff, deputy, or constable; but if he had any authority whatever, it was by a special power and appointment given him by the authority who signed the writ, founded on a particular statute for that purpose. If the writ had been served by a common legal officer, and an action brought by him on the bail bond, there is no doubt but ho must have set forth his office in his declaration, and that ho received and served the writ as such; which would be averring a matter of fact, that might be traversed, and put in issue; and it would not do for him to aver generally, that he was a person legally authorized.— If a person who had been arrested, and imprisoned, should bring his action for false imprisonment, would it do for the defendant to plead, that he was legally authorized to arrest and imprison him? Clearly, not; — and it is. equally clear —that where any claim or demand is made, by force of a special authority, such authority must be specially set forth, that the court may judge of the legality by the facts; — but from a simple averment, no judgment can be formed, for want of facts to ground it upon.
*436As to tbe second exception — tbe condition of tbe bond was- — -That tbe defendant in tbe suit referred to, should appear in tbe County Court in November. In declaring upon obligations with condition, it batb ever been practiced and beld, tbat tbe declaration should contain an averment that tbe condition is not performed; otherwise, tbe plaintiff does not show tbat be has cause of action.— Tbe averment in tbe present case, is — Tbat Eldridge appeared at November court, and tbe cause was adjourned till February, when tbe said Eldridge again appeared, but Elliot did not appear.— It goes further, and says — Tbat bis not appearing at February court, was a failing to appear, according to tbe condition of tbe bond: Tbe only condition was, tbat be should appear at November court, which tbe plaintiff batb not denied. Tbe words coupled with “ according to tbe condition of said bond,” are particularly confined to February court, and cannot, by any reasonable construction, be carried back to November; and tbe arguments of my brethren show tbe declaration to be very dubious and uncertain in tbat respect; and tbat, upon tbe principles premised, ought to be construed most favorably for tbe defendant, and not for tbe plaintiff.
As to tbe third exception — Tbe plaintiff, it is true, avers, tbat be made diligent search, etc. and returned tbe execution into tbe files of tbe court, (and in bis opinion) made a proper return of non est inventus thereon, and (be says) it was in due form of law; but bow can tbe court know that it was a proper one, or in due form of law. No facts are set forth, and it does not appear tbat tbe return contained any.— It batb been ever beld necessary, tbat tbe officer should set forth bis doings in bis return, so' far as will *437enable tbe court to judge of the legality thereof, if true, and for the defendant to contest them, if not; and if the contrary be once admitted, it will involve all in uncertainty, and deprive the defendant of his legal defense.— Therefore, it appears to me, that the declaration is wholly insufficient.