
    No. 2205.
    Felicite Kohler v. J. P. Walden et als.
    'Tlie prescription of one, tlireo and five years does not apply to actions against a sberiJÍ' and bis sureties on liis official ‘bond, for misfeasance or malfeasance in office; such action is proscribed by two years, beginning from the date of default. Revised Statutes of 1870, p- 688.
    APPEAL from Fourth District Court, parish of Orleans.
    
      Théard, J. A. G. Semmes, for plaintiff and appellant.
    
      Fellows & Mills, for defendants and appellants.
   Howell, J.

This is an action upon a sheriff’s bond to recover tbe sum of $1000, which the defendant Walden, then sheriff of Orleans, was ordered on twenty-eighth September, 1861, by tbe Sixth District Court of New Orleans, on the demand of the plaintiff herein, to retain in his hands until the further order of said court; being a part of tbe proceeds of property sold in tbe suit of Brinkman v. The Succession of Frederick Kohler in said court. The writ in said suit, issued in August, 1861, and the said amount was paid to the sheriff on second December, 1861, and on seventh July, 1864, a judgment was signed awarding to the plaintiff in this action the said sum under the homestead act. The defense is that the sheriff had ample funds in bank out of which plaintiff might have made her claim, hut she has lost it by her own laehes ; that the sheriff was forbidden by military orders to pay this or any other claim, and that the sureties are not bound in solido. Judgment was rendered against the defendants in solido, and the ex-sheriff and two of his sureties have appealed.

In this court they have filed the plea of prescription of one, three and five years. Neither of these prescriptions applies to this action. The cases cited by defendants were suits against sheriffs personally for damages and not on their official bonds for breaches thereof. The prescription in favor of sheriffs and their securities, against their acts of misfeasance, non-feasance, etc., is two years from the day of the omission or commission of the acts complained of. Acts 1855, p. 366, § 10; Revised Statutes 1870, p. 688, § 3546. This prescription is not pleaded, and we can not supply it. If it were, there is nothing in the record to fix the day of default, from which prescription would begin to run, to wit: the date of demand by the judgment creditor (plaintiff herein) and non-jiayment by the sheriff, admitting that this prescription can apply to this or similar cases. See 14 An. 216.

The defense is not sustained by the evidence or the law. Plaintiff has received $350 on account, and the judgment was rendered for $650. This case differs somewhat from the one of Harvey, syndic, v. J. P. Walden et als., recently decided.

Judgment affirmed.

Rehearing refused.  