Shirley, &c., vs. Landram. But it is contended for the appellants that the court transcended its authority in rendering the judgment for damages without the intervention of a jury. The personal liability of the owners and captain of the boat, sought to be enforced, is prescribed by the 3d section of chapter 7 of the Revised Statutes; and the 4th section of that chapter provides, that, in a proceeding in chancery, under the preceding sections, the damages shall be ascertained by a jury. It is insisted, however, for the appellee, that the mode of proceeding to enforce the right of action conferred by the statute is regulated by the Civil Code of Practice, and that section 419 of the Code, authorizing the court, in certain cases, to assess special damages given by statute, is applicable to this case. But, if it is true that the manner of proceeding directed by the statute is superseded by the provisions of the Code upon the same subject, we are, nevertheless, of the opinion, that said 419th section of the Code does not embrace this case; but that the proceeding is governed by the provisions of the 2d chapter of title 10 of the Code, which obviously require, that, in an action like this, the damages shall be assessed by a jury. (Sections 451, 454.) It seems to us, therefore, that the court erred in rendering the judgment for damages without the finding of a jury. Wherefore, the judgment is reversed, and the cause remanded for further proceedings, not inconsistent with this opinion. Commonwealth for Arnold vs. Sommers. CASE 27-PETITION ORDINARY-JUNE 18. Commonwealth for Arnold vs. Sommers. APPEAL FROM KENTON CIRCUIT COURT. 1. The surety in the official bond of a constable is not liable for money collected by the constable on a demand and mortgage for two hundred and sixty-two dollars and sixty-seven cents, which were placed in his hands for collection. 2. The official bond of a constable does not cover all acts which the constable might do as a mere agent, and not in his official capacity, but binds the surety only for the faithful performance of such official duties, as the constable is required, or permitted by law to discharge. 3. Although the statute expressly recognizes the liability of the surety in the official bond of a constable, for claims placed in the constable's hands for collection, on which he might obtain and execute process, or which he might officially collect without further precept, such liability does not embrace demands which the constable could not officially collect. CHAS. D. FOOTE, CITED For Appellant, Act of Dec. 23, 1803; Act of Feb., 1820. 5 J. J. Mar., 544; Crozier vs. Scott. 1 Met., 501; Walters vs. Chinn. 3 Met., 378; Tudor vs. Lewis. Revised Statutes, secs. 1, 2, art. 4, chap. 20. JUDGE HARDIN DELIVERED THE OPINION OF THE COURT: In May, 1863, L. M. Rees, with the appellee, John Sommers, as his surety, executed his official bond as a constable of Kenton county, in the manner and form 1 Commonwealth for Arnold vs. Sommers. prescribed in the 1st article of chapter 20 of the Revised Statutes. The appellant brought this suit in 1867 against Sommers, the surviving obligor in the bond of Rees, who was then dead, alleging that, in 1863, he had placed in the hands of Rees, "then a constable in the city of Covington, Kenton county, Kentucky, a demand and mortgage for collection against T. P. Herbert, for two hundred and sixty-two dollars and sixty-seven cents. That upon said demand and mortgage the said Rees, in his official capacity as constable, did collect and receive of said Herbert, at divers times, money for the said Arnold, to the amount of one hundred dollars ; and that said Rees has never paid, or caused to be paid to the said Arnold, all or any part thereof." The petition exhibits the official bond of Rees, and sets forth the covenant thereof, that he would, as constable, pay and satisfy all sums of money by him received or collected, "upon any note, account, or other claim placed in his hands for collection, to the person entitled thereto;" and prays for a judgment against the defendant for one hundred dollars, and ten per cent. damages there on. The court having sustained a demurrer of the defendant to the petition, and the plaintiff failing to plead further, the action was dismissed; and from that judgment this appeal is prosecuted. It is obvious that the amount of the debt alleged to have been put into the hands of Rees was not within the jurisdiction of any of the inferior courts, whose precepts are ordinarily executed by constables; and it may be assumed, therefore, from the averments of the petition, that Rees received and undertook to collect the debt without any process of law, which he was Commonwealth for Arnold vs. Sommers. authorized to execute as an officer. And the only question to be considered is, whether the covenants of the official bond of the constable are sufficient to render his surety responsible for such an undertaking. It is contended for the appellant, that by the 5th section of article 4, of chapter 20, of the Revised Statutes, the constable and his surety are made liable for claims placed in his hands for collection, whether he might receive and execute process thereon or not, and although the claims are not within the jurisdiction of any court whose precepts are ordinarily directed to constables; but we are of a different opinion. According to our construction of the bond, which is in the words of the form prescribed in the Revised Statutes, it does not cover all acts which the constable might do as a mere agent, and not in his official capacity, but binds the surety only for the faithful performance of such official duties as the constable is required or permitted by law to discharge. And although the statute expressly recognizes the liability of the surety for claims placed in his principal's hands for collection, on which he might obtain and execute process, or which he might officially collect without further process, such liability does not, in our opinion, embrace demands which the constable could not officially collect. It seems to us, therefore, that the demurrer to the petition was properly sustained. Wherefore, the judgment is affirmed. Brown's ex'x vs. Hawkins's ex'x. CASE 28-PETITION ORDINARY-JUNE 18. Brown's ex'x vs. Hawkins's ex'x. APPEAL FROM FRANKLIN CIRCUIT COUrt. "For and in consideration of one thousand dollars, I have this day sold to Mason Brown my negro man slave, Pete, aged thirty-three years. I warrant that I have good title to him; that he is a slave for life, and sound and healthy. As the said boy has heretofore run away, I covenant that, in case that he runs away and escapes from the said Brown, I will refund five hundred dollars of the purchase money, without interest, as witness my hand this 16th of October, 1858. "E. C. HAWKINS." Pete ran away and made his escape in August, 1864. Held-That the spirit of the contract would not have entitled Brown to anything for Pete's escape in old age, and for like reasons, his escape, six years after his delivery, and when unexpected events had caused it, and made him worthless or of less value than five hundred dollars, could not have been contemplated as cause of action for that stipulated sum. Neither party could have contemplated the war and its consequences. No action can be maintained on the bond on account of the escape. T. N. & D. W. LINDSEY, P. U. MAJOR, For Appellant. For Appellee. JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT: On the 13th of May, 1865, this action was brought by Mason Brown, and, after his death, revived in the name of his executrix, against the executrix of E. C. Hawkins, for the recovery of five hundred dollars on the following written contract: "For and in consideration of one thousand dollars, I have this day sold to Mason Brown my |