The plaintiff, administrator of a judgment creditor of one Peacoclc, sued the defendants as sureties of the late Sheriff of East Feliciana, to recover the amount of the judgment, in favor of his intestate, and obtained a decree in the lower court against them in solido, for the sum of five hundred and thirty-seven dollars and thirty-seven cents, with five per cent, interest.
The defendants appealed, and the only defence on which they rely in this court is the prescription of two years.
The 10th section ot the Act of 1855, provides, that “ the Sheriffs and their securities, shall be able to prescribe against their acts of misfeasance, nonfea-sance, costs, offences and quasi-offences, after the lapse of two years from the day of the omission or commission of the acts complained of.” Phillip’s Revised Statutes, p. 524.
There were concurrent seizures by the ^ Sheriff under other writs, with that of plaintiff’s intestate, and the Sheriff closes his return as follows, to wit, “ total amount in Sheriff’s hands, $1,419 61, in cash and bonds from sales of personal property, under the several writs before named, subject to distribution among the different claimants under the order of the court.”
Whether the prescription of two years, under the statute referred to, applies to actions for the recovery of money collected by Sheriffs under writs of fieri facias, it is unnecessary to decide, for the reason, that prescription would only commence to run in such cases from the date of the demand, by the judgment creditor, and non-payment by the Sheriff; and there is no proof in the record of any such demand, two years or more, prior to the institution of this suit. O. P. 766.
It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.
Merrick, O. J.,having been of counsel in the original suit, declines sitting in this case.