Lewis v. Ball — 6 Cow. 583

Majority

p. 583

Lewis and Lewis against Ball, late sheriff of Orange.

ALBANY,

Feb. 1827.

Headnote

The defendant, as sheriff of Orange, had been sued with his sureties ; and a judgment obtained in favor of the people, for the penalty of the bond given for the faithful execution of his office, pursuant to the act concerning sheriffs, &c. (1 R. L. 418, s, 2, 6.) The suit on the bond was not prosecuted by the present plaintiffs ; but by another, on application and leave granted pursuant to the 6th section of the act. An affidavit was now produced, showing that Lewis and Lewis had obtained a judgment for $106, 87, against Ball as sheriff, for a default within the terms of the bond ; and issued an execution for a part of that judgment; which still remained unsatisfied.

The motion to issue further execution upon a judgment obtained against a sheriff and his^ sureties, on a bond giverj for the faithful execution of his office under the statute, (1. JR. L. 421, s. 6.) should be on notice to the sheriff and his sureties.

The sureties are not liable beyond the amount of the penalty of the bond.

,7. A. Collier, for the plaintiffs in this suit,

now moved for a rule, that such sum be levied on the judgment in favor of the people, as should be sufficient to satisfy the judgment in favor of the Lewises ; and that an alias fi. fa. issue for that purpose.

But notice of this motion had not been given to the sheriff or his sureties.

The plaintiffs shew enough to entitle them to the rule applied for, in the first instance ; but this may be answered by the sheriff and his sureties. It may be that there has been already levied, by execution against them, the full amount of the penalty. Notice of the application should be given, in these eases, to the sheriff and his sureties. They may be able to reduce the amount claimed ; or shew matter which would defeat the application altogether,

Motion denied-