Majority
p. 590Ex parte Noble. moved for leave to prosecute the sureties 0f jacoh Downing, late Sheriff of Cattaragus county. 07 ° J He read an affidavit (which was not entitled) setting forth, D A judgment of $267 06, in October term, 1820, in faVOr of Noble against Reid & Dodge. 2. That a writ of test. fi. fa. issued and was delivered to Downing, then Sheriff of Cattaragus, January 11th, 1821, commanding him to levy the above sum, and endorsed for that sum, with interest from the 20th October, 1820, who levied the money accordingly. 3. That at last May term, Noble sued Downing for not retu™ing the writ and paying over the money, and at the last February term, obtained judgment against him for $292 78, which was docketed the 16th March last, 4, The affidavit, which was made by Noble, then proceeded thus: “ And this deponent further saith, that the said Jacob Downing is, as this deponent is informed and verily believes, utterly insolvent, and destitute of property, has been confined on the jail limits of Cattaragus county, and is unable to pay any part of the said judgment so recovered by him, this deponent, as aforesaid ; and that unless this deponent can collect the amount thereof of the sureties of the said Jacob Downing, upon their bond, the same will be lost. And this deponent farther saith, that the sureties who executed the bond required by law, with the said Jacob Dow
Headnote
Proceedings to obtain leave to prosecute the general sheriff,S under the statute, (l 6.) ’the” affidavit should show a tan°'of °nuUa bona, &c., on againstdsmthe thfif not necessary, where clearly that™ is insolvent
J. C. Morris,
p. 591ning, as such Sheriff as aforesaid, are, as this deponent is ir.formed and believes, M. B. C., H. W., W. S., J. D., L. D., and H. D. F. The motion was ex parte, and the only question was if a fi.fa. against the Sheriff and a return of nulla bona, &c., were necessary.
Before we give leave to prosecute the sureties of the Sheriff, under the discretion vested in us by the statute, (1 R. L. 421, s. 6,) we in general require that a fi.fa. a¿aiv.st the Sheriff be returned nulla bona, &c., as the evidence of his inability to pay. But this is not necessary vT.cn it appears sufficiently plain, as it does in this case, tho t the Sheriff is unable to pay. Issuing a fi.fa. and having it returned would be an idle ceremony.
Motion granted.