This is an application for a peremptory writ of mandamus to be directed to the respondent as circuit judge, commanding him to grant leave to prosecute the official bond of Charles A. Cron, late sheriff of Washington county. Application was made to the circuit judge for leave to prosecute such bond, which application was founded upon an affidavit of one of the relators and a certified copy of the official bond. Leave was refused by the circuit judge for reasons stated by him in the return to the alternative writ.
.The circuit judge held that an application of this nature, under chapter 196, Laws of 1860, could not be ex parte, -but must be made upon notice to the sheriff or his sureties. We think in this he was in error. But we shall not dwell upon this point, since we are of the opinion that leave to prosecute the bond was rightly refused upon the other ground, namely, that the affidavit does not contain sufficient facts to authorize the judge to grant the same. The affidavit states, in substance, that on or about the 10th day of November, 1861, Charles A. Cron, then sheriff of Washington county, while acting as such sheriff, having a certain process to execute against the property of Charles B. Goodrich, which process was a warrant of attachment, seized upon and carried away from the possession of the affiant and relator certain personal property belonging *687to them.' We think the defect in the affidavit is, that it does not state with sufficient certainty and clearness that the sheriff seized the property under and by virtue of the writ of attachment. Now, if the sheriff did not seize and carry away the property while acting in his official character and by virtue of the writ of attachment, then it is very clear that the sureties are not liable. The sureties have only undertaken to indemnify the public against the official acts of the sheriff, and not for mere naked trespasses which he may commit while acting without process, The affidavit should have stated, therefore, that the sheriff seized the property while acting in his official character, under and by virtue of the writ of attachment. For a trespass thus committed, we are of the opinion that the sureties are liable upon the official bond of the sheriff, although there is some conflict of authority even upon that point. See the case of The People v. Schuyler, 4 Comstock, 173, and authorities referred to by Justices Gardiner and Pratt.
It is enacted in section 1 of the chapter above cited, that whenever a sheriff shall have been guilty of any default or misdemeanor in his office, whether before or after the passage of the act, the party aggrieved thereby may apply to the circuit court, or to the judge thereof in vacation, for leave to prosecute the official bond of such sheriff. . And the circuit judge seemed to think that it was necessary to show in the application, not only that the sheriff had committed a trespass in seizing property under an-’attachment issued against the goods of another, but that the act complained of would, under the circumstances, amount to a misdemeanor. It is true that the word “misdemeanor” is used in the statute; but by this we do not suppose it was intended that it must appear that the sheriff was guilty of a criminal offense. The word “ misdemeanor,” in this connection, is undoubtedly used in the sense of “ misconduct.”
By the Court. — The motion for a peremptory writ on the return is denied.