The opinion of the Court was delivered by
Skinner, Ch. J.This is an action brought Upon an official bond of recognizance, entered into by S. Holmes, as principal,. Danforth, Aynsworth and others, as sureties, to .the treasurer of the county, for the faithful execution of the duties of the office of sheriff. The treasurer complains of a breach of the bond, accruing by the neglect of the sheriff, to assign a jail bond to one Cushing Barr, or to pay over to him the amount of money collected on a writ of execution in his favour, against one Hezekiah Wead. Whether the action of debt, in such case, will lie in the name of the county treasurer, iá the most important question arising out of the pleadings; and the result of our opinion thereon, has rendered it unnecessary to examine the various special causes of demurrer.
If such action can be maintained, it must be by force of the statute, which points out the objects, and form of the recognizance, and determines the liability of the bail. By the English law, no such action will lie against the sureties of the sheriff, and no common law authority is relied upon by the plaintiff, to justify the proceedings.
As the instances of bankrupt sheriffs are pot unfrequent in the state, if no other remedy against the bail was given to an individual, who may sustain damage by his neglect, the necessity of giving to the statute the construction contended for by the *115.plaintiff, would be more apparent; but it is believed the legislature have pointed out a specifick remedy, in every case in which they intended the b'ail should be subjected. On recurring to the statute, we find that, for every injury (excepting in the case of the death of the sheiiff,) ample remedy is provided ; and although judgment must, in the first instance, be obtained against the sheriff, before any proceeding can be had against the sureties, and the party thereby subjected to some delay, yet there seems to be great propriety in requiring the party to pursue the ordinary course of first prosecuting the sheriff, and if satisfaction can be obtained from him, the bail ought not to be harrassed with suits.
Should the claims against the sheriff exceed the amount of the recognizance, if an action of debt thereon, and scire facias upon the judgment rendered therein, may be maintained at the suit of the treasurer, for the benefit of such persons as may have been damnified by the sheriff’s neglect; the whole amount of the bond may thus be exhausted, and the sureties discharged from any farther liability ; though, from the effects of the sheriffalone the executions may have been satisfied. The additional security intended by the- bond, would, in such case, wholly fail.
The remedy, here pursued, is but partial — one action of debt only, upon the bond, in the name of the treasurer, can be prosecuted. The claimant, therefore, at whose instance the suit is brought, is the only one to be benefited thereby; and if writs of scire facias, in the name of the treasurer, are afterwards prosecuted upon the judgment, by different claimants, this would not impede the pursuit of others, under the statute, by scire jadas, in their own names, upon judgments rendered against the sheriff. Much embarrassment, if not insurmountable difficulties, may arise in permitting these different remedies, in the names of the treasurer, and of others, to be pursued; and as no precedent is found, to authorize proceedings thus complicated, the plain remedy provided by the statute, ought alone to be sanctioned. The opinion, that this was the intention of the legislature, is strengthened, by recurring to the remedy given by statute upon bonds taken by the judges of probate; as also by an examination of the several acts that have been passed upon this subject, and the uniform course of legislation, in requiring indemnity for costs.
It is presumed, that under the act of 1779, in which the condition of the recognizance was not only general, for the faithful execution of the duties of the office, but also special, for answering all such damages as any person or persons should sustain, &c. as no particular provision was made for such person to prosecute, actions in the name of the treasurer, for the benefit of the persons aggrieved, were sustained. The treasurer was probably considered as trustee of the recognizance, for the use of the persons damnified; but to what authority the person applied for liberty to prosecute, or how costs were secured, we are not ad? vised.
Benj. Swift and John Smith, for the plaintiff. Asa Aláis, Jas. Davis and Seth Wetmore, for the defendants.The same language in the condition of the bond is preserved in the statute of 1787 ; but in the revision of the laws, in 1797, the language is changed, and that part of the condition, before mentioned, is omitted; and at the same time particular provision *s mac^e f°r any person to prosecute in his own name, by scire 'facias, after judgment obtained against the sheriff. If this remedy was intended as cumulative only, no reason can be assigned, why the terms of the condition, that had been so long and repeatedly used in the statute, and in which the damages of any person aggrieved were specially noticed, should have been changed. In looking at the statutes of several of the states, it is found, special provision is made for the prosecution of the sheriff’s bonds, by the person who has sustained damage through his neglect. The decision of the case in Massachusetts, referred to by the plaintiff’s counsel, is entitled to respect; but it is evident, the consideration that no provision was made for the person aggrieved, influenced the court in giving the construction to their statute; and it seems by a subsequent statute, a remedy is specially provided. The treasurer is not required to permit a suit to be prosecuted in his name; and security for costs, which in all other cases is required, is not provided for. It ■would be a reproach upon the legislature, to say they had authorized any and every citizen, at their pleasure, to harrass with suits, in the name of a publick officer, the sheriff and his bail, at the expense of the publick; or, what would be equally extraordinary, at the expense of the persons so prosecuted.
Judgment, that the declaration is insufficient.