This proceeding is instituted under an act passed 23d December, 1840, authorising the clerk of the Supreme Court, in the name of the successful party, to move against sheriffs and coroners, for failing to return executions from the Supreme Court, or for failing to make the money on any execution, &c.
The second section provides, that when the execution shall not be returned by the sheriff, the cirtificate of the clerk of the Supreme Court, under the seal of the Court, stating the contents of the execution, and that it was put in the post office, directed to the sheriff, and the postage paid, shall be evidence of the contents of the execution, and that the same came to his hands— *65unless the sheriff deny on oath, that the same came to his hands, or that it was returned to' the proper office by due course of mail, or that the money could not be made on the execution, as the case ¡may be.
It is also provided, that this proceeding shall be governed by the same rules and regulations, as now govern motions against such officers and their sureties, where exécutions issue from the Circuit Courts.
The judgment entry in this case, is strictly conformable to the law, and shows the appearance of the sheriff, the certificate of the clerk of this court, describing the execution, which was not returned, and the refusal of the sheriff to make the affidavit which the law requires, to exculpate him from the legal inference of having failed to return the execution, and the judgmeut was, therefore, properly rendered against him.
It is however, supposed that as his sureties were not notified of the motion, that no judgment could be rendered against them. It has been too long settled to be now disturbed, that upon notice to the sheriff, a judgment may be had against the sureties to his official bond. In this case, it is showji by the judgment of the Court, that those against whom the judgment is rendered, were the sureties of the sheriff in his official bond, at the time of this default, and as this proceeding is to be governed by the same rules which obtain in motions against sheriffs, when the execution has issued from the Circuit Courts, the judgment of the court below is correct, and must be affirmed.