
    The Commissioners of the Treasury vs. The Securities of John N. Neuby, Sheriff of Abbeville District.
    Before the securities of the sheriff can be sued on their bond, a nulla bona must have been returned on some fi-fa. against the sheriff.
    If the sheriff have been sued first, and nulla bona returned, then no im parlance will be allowed his securities in the particular case in which sucl) return may have been made.
    Tried before Mr. Justice Huger, March Term, 1821.
    ThIS was an action brought upon the sheriff’s bond, against his securities. In some other case á judgment had been obtained against the sheriff, execution issued, and returned, nulla bona.
    
    Upon this statement, the defendant claimed the right of imparlance, which was refused by the court,- in virtue of the act of Í795. (9 Faust 10.) The act enacts that, “ it shall not be lawful for any person, &c. to commence any action against the security, &c. until a return of nulla bona shall have been made on some execution to be issued a•gainst the sheriff, &c. Provided further, That' if the said sheriff should have been first sued after á return of nulla bona, the security, jkc. shall not be entitled to an impar-lance.”
   Mr. Justice Richardson

delivered the opinion of the Court.

The construction of the act, though not obvious at first slight, is plain, upon inspection. The first provision is that before the security shall be sued, in any case, the principal shall, in some case, have been pursued to insolvency, (the insolvency to be evidenced by a veturn of nulla bona.)

McDuffie, for the motion.

McCravén, contra.

The second is, if the principal shall have been pursued to insolvency in a given case, then the security, if sued, in that particular casé, shall not be entitled to an imparlance. And the reason arising out of ihe state of facts comports with the literal distinction between the two provisions.— The former is to prevent a security from being harrassed, while his principal may be solvent, and may himself discharge the claim. The latter is to save the creditor from Unnecessary delays, if he should sue the securities after his fclaim has been made unquestionable and precise, by actual recovery had against the principal; and after the principal has been moreover pursued to insolvency.

The motion is therefore granted,

Justices Gantt, Johnson, Nott and Colcock, concurred.  