
    Treasurers of the State v. James M. Harris, et al.
    
    Where judgment has been entered against a sheriff and his sureties on his official bond, payments, made by the sheriff, or obtained by process out of his estate and effects, on account of the official debts for which the judgment was obtained, are not to be credited to the sureties on the judgment; but they remain liable for the defalcations of their principal, to the extent of their aliquot parts of the penalty of the bond, after all his means have been exhausted.
    Before Mr. Justice Richardson, at York, Fall Term, 1831.
    The defendant James M. Harris, late sheriff of York, having been attached for the non-payment of moneys collected by him, as sheriff, took the benefit of the insolvent debtors act, and executed an assignment of his estate and effects accordingly. Shortly afterwards he and his sureties confessed a judgment on his official bond for the benefit of his official creditors; and these creditors having received a dividend of the assigned estate, the sureties claimed that the amount received by them, should be credited on the judgment, which was for the penalty of the bond, and thus reduce the sum for which execution might bo enforced against the sureties individually. On a rule against the sheriff, to compel him to enforce the execution against the sureties, this claim by them was shewn for cause. The presiding Judge held the cause shewn insufficient, and made the rule absolute. A motion was now made, on behalf of the sureties, to reverse his Honor’s decision.
    Hill, and Williams, for the motion.
    Dawkins, and Henry, contra.
    
   Johnson, J.

delivered the opinion of the Court,

The object of requiring the sheriff to give security for the faithful discharge of the duties of his office, was to provide for the case of his insolvency; and the act of 1795, 2 Faust, 9, declares, that each surety shall severally be held and deemed liable, each, one for his equal part of the penalty of the bond, (which is to be apportioned acccording to their number,) and no more. But I take it as very clear, that they are liable to that extent, if the sheriff is in default to the amount of (the penalty, after exhausting all his means. If he had paid out millions on account of money received by him,-that would not discharge the sureties, if in the end he was unable to pay the whole. The fund having been obtained through the process of the Court cannot alter the case; for it is at last but so much paid by him. Suppose it paid in satisfaction of this judgment; still the sureties are liable, for their aliquot parts of the penalty .of the bond, to those for whose benefit the suit was brought, if the sheriff was a defaulter to that extent. The motion is dismissed.

O’Neall, J. and Martin, J. sitting for Harper, .L concurred.

Motion refused.  