William Johnson and another v. Charles F. Hozey, late Sheriff, and others, 2 Rob. 555

Bullaud, J. The plaintiffs represent that they lately recovered judgment against sundry persons in the Commercial Court, upon which execution issued, and Hozey, the late sheriff, received the sum of $244 62, which he neglects and refuses to pay to them. They, therefore, bring suit against the late sheriff, and make his sureties parties, and pray judgment that they may be condemned to bring into court the whole sum of sixty thousand dollars, the penalties of their bonds. Judgment was rendered accordingly, and the sureties have appealed.

The amount claimed would have been insufficient to give jurisdiction to this, court, if it had not been coupled with the prayer for judgment for the amount of the penalties of the bonds. The sheriff’s return upon the execution shows that he received the amount, after the establishment of the sheriffalty of the Criminal Court, to wit, in May, 1840 ; and, consequently, we cannot distinguish this case from several others lately decided, in which we held that the sureties were released. Ante, p. 479. The judgment of the Commercial Court is, therefore, reversed, and ours is for the sureties, with costs in both courts.