This is an action against the sureties of a sheriff, to compel them to pay a sum of money alleged to have been received by him acting in his official capacity, and which he neglected to pay over to the plaintiff, who claims that he is entitled to receive it.
’The defense is placed on several grounds, one of which, and the one we deem most important, is prescription. The plea of prescription of two years was sustained by the court below, and the suit dismissed-The plaintiff has appealed.
The facts are as follow: In 1866, Bienvenu, sheriff of the parish of Orleans, sold certain stocks, seized under execution, from the sale of which he realized the sum of $6232 50. The sale was made on the-twenty-sixth of March, 1866, and on the next day a rule was taken on the sheriff to show cause why he should not pay over the money so-received to Joseph Lalande, a party setting up a claim to it. On trial of the rule, on the sixteenth May, 1866, it was dismissed, but the-sheriff was ordered to pay over the money to Ingraham, the judgment creditor, at whose instance the seizure and sale of the stocks were-made, and who transferred the judgment and all his rights under it to the plaintiff. On the third of July, 1867, the sheriff having failed to pay, a rule was taken on his sureties, to show cause why they should not be condemned in solido with him. On the third of December, 1867', this rule was made absolute, and the sureties were accordingly condemned in solido with the sheriff, to pay the money. Subsequently an action of nullity was brought to set aside this judgment, on the ground that no citation had been served upon the sureties. The judgment was annulled on that ground, on the twelfth January, 1869, and the decree of the Fifth District Court annulling it, was confirmed on appeal to this court. See 22 An. 245. On the twelfth of May, 1870,. the present suit was brought.
The defendants, therefore, say that between the twenty-seventh of March, 1866, or the sixteenth of May, 1866, or the third of July, 1867- *361and the twelfth of May, 1870, more than two years have elapsed, and that the sureties are discharged under the law invoked by them. Ray’s Revised Statutes, section 3546. “The sheriff and their securities shall be able to prescribe against their acts of misfeasance, nonfeasance, costs, offenses, and quasi offenses after the lapse of two years from-the day of omission or commission of the acts complained of.”
But the plaintiff contends that his suit is not fox damages arising from negligence nor for misfeasance or nonfeasance; neither is it for offenses or quasi offenses, nor for any act mentioned in the law prescribed by two years — but that it is simply lor money the sheriff has received while acting as mandatary, or depositary, or sequestrator. That in executing the writ under which he received the money he acted as the judicial agent of the plaintiff, and refers to 2 L. R. 280 and to the case of Spalding & Rogers v. John P. Walden et al., 23 An. 474.
The plaintiff holds further that if the prescription of two years were applicable to a case like this it was interrupted by the rule taken on the sheriff and his sureties on the third of July, 1867, which was served on the sheriff and all the sureties. On the first ground we think the authorities cited are not in point. The facts of the case in-23 An. differ materially from those presented in the case before us. In that case the suit was for money received by the sheriff during the late war and put in bank for the owners, who were absentees; the sheriff, by reason of military orders then in force, was unable to withdraw the deposit to settle the claim. The act of the sheriff was held-to be neither an act of misfeasance or nonfeasance, nor was the suit placed on that ground. In the case under consideration the petition of the plaintiff charges: “ That the said Bienvenu, sheriff, failing to-pay over the proceeds of the sale on demand being made for that purpose, a rule was taken upon him by petitioner and notice thereof given to said sureties, and on the third of December, 1867, judgment was rendered on said rule against the said sheriff for $3343 18, with interest, etc., in favor of petitioner; that on said judgment execution issued and was returned, no property found,” etc. The sheriff had sold, certain stocks seized under the execution issued upon the judgment of the plaintiff’s transferrer, received a large sum of money in cash, and after an order of court to pay it over to the party entitled to it he declined and failed to.comply with the order, and an execution issued against him was returned nulla Iona.
On the second ground, that the service of the rule interrupted prescription. In the action to annul the judgment rendered on the third of July, 1867, it was decided that the law has not given the summary remedy by rule against sureties on a sheriff’s bond. That the want of' citation of the sureties was fatal since they did not answer or other*362wise waive citation. There having been no citation there was no interruption of prescription. 6 Rob. 142, 2 An. 927.
We think the judgment of the court below was correctly rendered..
It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs. Tfoliler v. Walden, 23 An^^f