
    Culver vs. Green and others.
    The sureties in a bond given upon appeal from a justice’s judgment, pursuant to 2 R. S. 259, § 189, cannot be made liable beyond the amount of the penalty, though the judgment recovered by the appellee in the common pleas exceed that amount.
    In an action on such bond, proceedings against the sureties will be stayed oft their paying into court the amount of the penalty with costs.
    The plaintiff recovered judgment in a justice’s court against McDonald, who appealed to the common pleas. The appeal bond was executed by McDonald as principal and by Green and Miles as sureties. Afterwards, this suit was commenced against all the obligors in the bond, the plaintiff declaring in debt for $300, and averring the rendition of a judgment in his favor, on the appeal, of $207,69. A motion was now made in behalf of the sureties for an order staying proceedings as against them on their paying into court $100 (the penalty of the bond) and costs.
    JV*. Hill, Jr. for the motion,
    insisted that the sureties could not be made liable for more than the penalty of the bond. He cited 2 R. S. 187, § 189, 2d ed.; id. 191, § 223; Sess. Laws of 1824, p. 296, § 39; Oshiel v. DeGraw, (6 Cowen, 63;) Clark v. Bush, (3 id. 151.)
    
      8. Stevens, contra,
    conceded that, as a general rule, no more than the penalty of a_bond could be recovered against a surety. He contended, however, that this case was an exception. The statute (2 R. S. 191, § 223, 224, 2d ed.) provides that) on the execution being returned unsatisfied, the appellee may recover in an action on the appeal bond, as damages, the amount remaining due and unsatisfied on such execution. This differs from the language of the old act under which the case in 6 Cowen was decided. (Sess. Laws of 1824, ch. 238, § 39.) That act gave the appellee the right to prosecute &c. for the recovery of the amount of such judgment and costs. It did not define what the plaintiff might recover ; whereas the present statute declares that he may recover as damages the amount due.
    If the form of action adopted in this case be such as to preclude a recovery beyond the penalty of the bond, the court will allow the plaintiff to amend by declaring in covenant.
   By the Court,

Cowen, J.

The difference between the old and new statute lies in words which express the same thing in substance. The old act was, that the appellee might prosecute for the recovery of the amount. This would have been idle, if it did not mean he should in fact recover it. The revised statutes provide that he may recover as damages the amount remaining due fyc. The former act was taken with the qualification, as against the Sureties, arising from the nature of the transaction, viz. with the proviso that the amount did not exceed the penalty. The present statute must be read in the same way.

Motion granted.  