If the money had been brought into court on the order, it would have been a good defence to both of the actions. But the officer has not done this, and it is competent for either the constable, or the plaintiff in the foreign attachment and fi. fa. issued by the Justice of the Peace, to maintain the action against the late sheriff and his sureties. This case is distinguishable from the case of Ross. v. Jacobs: 2 Harr. 445, as in that case the action was in assumpsit founded on a privity of contract between the parties to the suit, for money had and received by the defendant to the plaintiff’s use, and which could not be sustained without proof of such privity. But in this case, which is an action of debt on the official recognizance of a public officer, the action is given by statute and is based on an official duty imposed upon him by law, and not on any privity; or ground of contract whatever, either expressed or implied, between the parties. But as the actions were both for the same debt, the court directed judgment to be entered for the plaintiff in the first case, and for the defendant in the other.