delivered the opinion of the Court. The question here depends entirely upon the construction to be given to the 6th section of the statute concerning sheriffs and their duty. (1 R. L. 418.) It enacts, “ that in case of any recovery, by any party aggrieved against any sheriffj/or any default or misconduct in his office, it shall be lawful for the justices of the Supreme Court, upon motion in open court, to order the bond so given by such sheriff, to be put in suit against such sheriff’ or his sureties, or all or any of them.” And the statute regulates the manner of levying, so as to satisfy the party aggrieved. .
It has been argued by the defendants’ counsel, that the judgment set forth in the replication, was not recovered for any default or misconduct of the sheriff, in his office, during the time the defendants were responsible for his conduct; *396and that the judgment is not from any default or misconduct jn 0j£C£¡) jjUt forhis non-appearance on the recognizance, for which the defendants are not liable.
These objections are decisive. There has been no direct recovery against Eisenlord, the sheriff, for any default or misconduct in his office ; and although the presumption is strongly against him, that he neglected his duty, and became answerable to Marvin, for not levying and returning the execution in his favour, yet his default,in that respect, has not been judicially ascertained. Eisenlord''s default in not appearing on the recognizance, is only, argumentatively, evidence of a default or misconduct in his office. The pláin and obvious meaning of the statute is, that the recovery against the sheriff, should be ex directo, for his default or misconduct, and where the judgment is grounded upon it. The attachment, and his non-appearance upon it.involve the forfeiture of his recognizance ; but that does not positively show, as a recovery founded directly on the default would,, that he had rendered himself liable to Marvin for the amount of his debt. The principle which has obtained with régard to sureties, that they are only liable when the case is brought within the very terms and scope of their undertaking, forbids an equitable or enlarged construction of the statute. We are bound, iii this case, to give a construction upon that principle ; and as the case is not brought within the words or plain meaning of the act, the defendants must have judgment.
Judgment for the defendants.