
    Bibb v. Cauthorne.
    April Term, 1792.
    Sheriff’s Bond — Obii/iee.—The proper obligee in the Sheri Lbs bond is the Commonwealth.
    Same-Action on — Judgment.- — in an action upon a Sheriff's bond in the name of the Commonwealth, for the benefit of a person aggrieved by the misconduct. of the Sheriff, the judgment should be entered for the penalty, to be discharged by the payment of the damages assessed and costs, “and such other damages as may be hereafter assessed upon suing out a scire facias, and assigning new breaches, by the said [Cauthorne,J or any other person or persons injured.”
    This was an action of debt brought in the name of the commonwealth for the benefit of Mrs. Cauthorne, against William Bibb, .Richard Bibb and John Watson, upon a bond executed by them, the former as sheriff, the two latter as his securities. The breach laid in the declaration is, that the said William Bibb did execute two writs of fieri facias issued from the County Court of Essex, upon judgments obtained there by A. R. against the said Cauthorne, notwithstanding two writs of supersedeas to the said judgments, had been obtained by the said Cauthorne directed to the said William Bibb, and which were tendered to, and refused by him before the service of the said execution ; and for selling the goods of the said Cauthorne upon the said executions, in contempt of the said two writs of supersedeas, although there was manifest error in the said judgments, which the same would have reversed; whereby action accrued to the commonwealth for the benefit of the said Cauthorne to demand the pen-alt}’ of the said bond.
    The writ against William Bibb being returned “no inhabitant” the suit abated as to him, the other defendants plead conditions performed. A verdict ivas found, that the defendants had not performed, but had broken the condition of their bond, and assessed the damages for levying the executions in the declaration mentioned, in contempt of the said two writs of super-sedeas to ¿260.
    The judgment of the court is, “that the commonwealth recover against the defendants for the benefit of the said Cauthorne ¿1000 (the penalty of the bond) and the costs, but to be discharged by the payment of the damages aforesaid, and such other damages as may be hereafter assessed, upon suing out a scire facias and assigning new breaches. ”
    From this judgment the defendants appealed.
    
      
      Sheriff’s Bond — Validity.—On the question of the validity of a sheriff’s bond, the principal case is cited in Winslow y. Com., 2 Hen. & M. 464, 466'. See monographic note on "Official Bonds" appended to Sangster v. Com., 17 Gratt. 124.
    
    
      
       flame - Action on — .iudgmes'jts,- -For the proposition that, in an action upon a sheriff’s bond, for misconduct of the sheri ft, judgment should be entered for the penalti", to be discharged by payment: of the damages assessed and costs, and such other damages as may be hereafter assessed upon suing out a seize facias, the principal ease is cited in Newell v. Wood, 1 Alunf. 556: Gordon v. Justices, 1 Munf. 8; Smith y. Cooper. 6 Mnnf. 405. See monographic note on “Official Bonds" appended to Sangster y. Com., 17 Gratt. 124.
    
   *The PRESIDENT.

It was objected by the defendant’s counsel, that this action ought not to have been sustained, the bond having been made payable to the commonwealth, instead of the justices, as required by the ordinance of convention passed in 1776, Ch. 5, Sec. 8, which gives the remedy to individuals injured by a breach of it.

Jf the counsel had been correct in his premises, his conclusion would have been right; but there was'at the time of passing this ordinance, a prior subsisting law of 1748 amended by another in 1753, which directed the giving of bonds of this sort, payable to the king, and pointing out the same remedy to individuals, injured by a breach of them. This law amongst others, was by the same ordinance of convention declared to be in force, and the legislature in 1782 considered it as being in force, by referring to and repealing part of it.

The bond in question, pursues the form of those laws, substituting the commonwealth for the king.

Upon the merits the plaintiff is right; but the court is of opinion that there is error in the judgment, in attaching the recovery to Catharine Cauthorne as to future injuries, excluding all others.

The judgment therefore must be reversed for this error, and entered, “that the commonwealth recover against the defendants the said sum of A1000 and the costs, but to be discharged by the .payment- of the damages by the jury assessed for the benefit of Catharine Cauthorne, and the costs, and such other damages as may be hereafter assessed upon suing out a scire facias and assigning new breaches by the said Catha-rine, or by any other person or persons injured.”  