#### The People of the State of Illinois for use of Charles E. Titley, Plaintiff in Error, v. United States Fidelity & Guaranty Company, Defendant in Error.

Gen. No. 19,082.

(Not to be reported in full.)

Error to the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.

Affirmed.

Opinion filed November 25, 1914.

Statement of the Case.

Suit by the People of the State of Illinois for use of Charles E. Titley against United States Fidelity & Guaranty Company as surety on a receiver’s bond. A demurrer to the declaration was sustained, and plain*594tiff electing to stand by Ms declaration was adjudged to go hence without day and to pay the costs, whereupon he sued out this writ of error.

Abstract of the Decision.

1. Receivers, § 57 * —when receiver or surety is liable for funds. Neither the principal nor surety on a receivers’ bond can be held liable for a failure to pay out funds as such receiver, until it is shown that he has or has had funds in his hands as such receiver.

2. Receivers, § 57 * —when declaration against surety is insufficient. A declaration in a suit against a surety on a receiver’s bond because of the failure of the receiver to pay a certain sum out of funds derived from rents- of certain premises is fatally defective, where there is no averment that the receiver ever had in his possession as receiver any rent whatever derived from the premises in question or any other funds from any source.

Bither, Goff & Francis, for plaintiff in error.

George H. Mason, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Graves

delivered the opinion of the court.