James S. Dougherty and another v. Samuel Jarvis Peters and others, Sureties of Hozey, late Sheriff, 2 Rob. 537

Bullard, J. A re-hearing has been asked for in this case, principally on the ground, that the sureties are not bound in solido, according to the terms of the bond. We are satisfied, upon examination of the bond, that they are not bound in solido. Each surety binds himself severally for a specific sum, beyond which, in no event, can he be liable.

There are, consequently, eight several obligations, amounting in all to sixty thousand dollars, and the creditors of Hozey, on account of official misfeasance, have an action severally against each and all of the sureties, until the amount for which each may be bound shall be exhausted, provided that they are entitled to only one satisfaction. It is also said, that the sum for which judgment is rendered is greater than is due to the parties, and that the sheriff is entitled to his fees. The boat sold for $4150, and that is the sum the sheriff was condemned to bring into court for distribution.

It is true that allowance ought to be made to the sureties for the fees due to the sheriff in that case, which he is entitled to retain. The judgment will be amended accordingly, so as to condemn the sureties severally, instead of in solido, and reserving the sum which the sheriff has a right to retain for his fees.

It is therefore ordered that the judgment of the Commercial Court be annulled; that there be judgment in favor of the plaintiffs against the defendants, severally, in the sum of $3801 75, with interest at 5 per cent per annum from judicial demand, with costs in the court below; the costs of appeal to be borne by the plaintiffs and appellees. And it is further ordered, that the plaintiffs have leave to take execution against each or any of the defendants for the above sum, provided there be but one satisfaction.