Opinion op the Court by
Judge Peters:The petition contains no allegation that the persons on whom the fee hills, for which the sheriff gave his receipt, were solvent, and able to pay them, but it is alleged that he collected them, and failed to pay the amount over.
And it appears incidentally in the bill of exceptions that the sheriff had died before the institution of the suit, but when or how long before is not known.
It was necessary under the issue formed by the pleadings to prove the collection of the money by the sheriff in order to entitle appellant to a judgment, which proof he failed to make and this was made the more necessary as the sheriff was dead and his securities could not be presumed to know anything in relation to the transaction.
No such enactment appears to have been made applicable to sheriffs as sections 4 to 5 of article 4, chapter 20, 1 E. S. p. 257, fixing the responsibility of constables.
As therefore there was no evidenec authorizing a judgment against appellees, the judgment rendered must be affirmed.