
    [*] THE STATE against Surviving Sureties of JOHN HARDENBURGH, deceased, late Sheriff.
    Sheriff’s sureties for one year, not liable for money by him raised in that year on execution of another year. Application for assessment on •sheriff’s bonds, limited to six years, against sureties. Per 0. J.
    Judgment had been obtained against the sureties of Har■denburgh, late sheriff of the county of Somerset, in September Term, 1797, on the prosecution of Thomas Irwin. A motion was in September Term, 1807, made, to take out •execution on this judgment, against the surviving sureties, in favor of Garret Tunison, surviving executor of Cornelius Tunison, Sen., deceased, for the sum of ¿6500 and upwards, being as was stated, the surplus over and above the executions Hardenburgh had had in his hands against the said Cornelius Tunison. This proceeding was under the act of March, 1796.
    
      Mr. R. Stockton, in favor of the application,
    [258] stated: that the sheriff’s bond was dated in October, 1791; that the deed given by Hardenburgh for Tunison’s land, was in 1792, during the year that Hardenburgh was sheriff; and that the amount of the sale of the land was nine hundred and thirty-six pounds and fifteen shillings, and the amount of the several executions in the hands of Hardenburgh was three hundred and seventy-four pounds, seventeen shillings and one penny, leaving upwards of five hundred pounds in Hardenburgh’s hands, a surplus which he ought to have paid over to Tunison; and that the sureties were now answerable to his executors for this surplus; that the breach of the bond was in 1792, when the sale was made, and, therefore, the sureties were answerable.
    
      Mr. Maxwell, for the sureties, contended;
    that they were not answerable for the acts of the sheriff, unless done in pursuance of the commission on which the surety bond was given; that Hardenburgh had been sheriff for several years preceding the one on which the bond was given; that the land was sold on an execution which had been put into Sheriff Hardenburgh’s hands, of a former [*] year, and so appeared by the deed; that although the deed was executed in the year 1793, yet the sale was under his former commission, a continuance of, and completion of his former duty, under a former commission; and, therefore, that the sureties of this year were not responsible, that at all events this application was barred by the statute of limitation, Pat. 353, § 5, especially made for the protection of sheriffs and their sureties.
    
      Mr. I. H. Williamson, on the same side:
    It is not competent for this court to give relief to the applicant, (supposing he is entitled to relief) in this way; that the question could not be tried in this summary way, but should be tried by a jury; but even if it could, he said, that it was necessary for the applicant to make out that the laud was sold on an execution put into his hands after the execution of the surety bond, and before the expiration of the commission on which the surety bond was given; and that the present application was a prosecution in its nature and came within the meaning and spirit of the statute limiting prosecutions on sheriff’s bonds; that statutes of limitations must be favorably construed.
    
      Mr. Stochton, in reply, said:
    that the section giving authority to this court, to direct further sums to be levied on sheriff’s bonds, Pat. 203, § 10, was so broad and full, as completely to embrace this case; that the sale was an official act, and done during the year the sureties were bound; that it does not come within the words of the act of limitation; that this application was [259] not a prosecution; the prosecution . was had in time, and judgment obtained; that the act of limitation did not run against a judgment; that acts of limitation should be construed accox’ding to the words.
    
      Mr. Williamson observed,
    that even if the act of limitation in case of sheriff’s bonds did not apply, yet that the general act of six years did.
    
      Mr. Stochton answered,
    that statutes of limitation [*] only bar the x’emedy, and not the right; and that they had the remedy agaixxst the sureties.
   At this term, the following opinioix was rendered :

Kirkpatrick, C. J.

— John Hardenburgh, as sheriff of Somerset county, and Peter Dumont, together with these defendants as sureties, on the 15th of October, 1791, gave bond to the State of New Jersey, for the faithful execution of that office, in the penalty of £6000.

In September Term, 1797, judgment was entered on this bond in the Supreme Court, on the application of Thomas Irwin, and others. Since that time Hardenburgh and Dumont have deceased. This is a motion to take out execution on that judgment against the defendants, as surviving obligors, in favor of Garret Tunison, surviving executor, &c., of Cornelius Tunison, Sen., deceased. It is grounded on the act of March 18, 1796, entitled an act concerning sheriffs; and prays an execution for £555 0 11, which sum, it is said, the said Hardenburgh made of the sales of the estate of the said Cornelius Tunison, over and above the amount of the executions in his hands, and that he has neglected or refused to refund and pay back the same.

It appears from the documents and proofs exhibited before the court, that Hardenburgh was elected sheriff of Somerset county in the month of October, in the years 1785, 6 and 7; and again in the same month in the years 1791, 2, 3; that during the first three years, several executions came to his hands against the said Cornelius Tunison; that during the year commencing in October, 1791, one only came to his hands against that defendant, to wit, one at the suit of Robert Henry; arid that the said execution at the suit of Henry, was recorded on the 27th December, 1791, and therefore could not have come into his hands until that day.

It further appears that the sale of the estate, the proceeds of which are said to have been detained by the sheriff, was made on the 17th January, 1792, only [*] twenty-one days after the execution of Henry came to his hands. The sale, therefore, could not have been made upon this execution. The law did not admit of it. It required a public advertisement of two [260] months at least, to justify such sale.

To me, therefore, it is manifest that the sale must have been made on one, or all, of tire executions received in the former years. Row, by virtue of which commission was this done? Was it done by virtue of that of October, 1791 ? Certainly not. Let us suppose, for a moment, that instead of Hardenburgh, John Denn had been elected and commissioned to be sheriff of that comity, in October, 1791. Ilardenburgh. would have done just the same thing that he has now done. According to universal practice and experience, he would have gone on to finish the business which had come into his hands, and which he had begun during his year. He would have sold the land, he would have received the money. Who, then, would have been answerable for this default? The securities of John Denn? No. The securities for the faithful performance of the duties of the commission under which the act was done, under which the sale was made, under which the money came into his hands.

In the case that I have put, what could John Denn have done? Could he have sold, on the 17th of January, 1792, under this execution? No. Could he have demanded or received the surplus of the money arising from the sale, from Hardenburgh, beyond the amount of execution in his hands? No, no more than a mortgagee, who might have had a mortgage upon the land, could have received that surplus. He was only an incumbrancer. Hardenburgh was the agent of the law. He alone, in that case, would have been authorized to sell. He alone would have been authorized to receive the money. If he had sold clear of incumbrance (if this can be done), after paying the incumbrances, of which this execution in the hands of John Denn would have been one, he would have been obliged to return the [*] surplus to the defendant; and if he had failed in this, his sureties for that year, under the commission for which he then acted, would have been liable; but never those of John Denn.

Now that Hardenburgh himself came in, in 1791, does not at all alter the nature of the case. The sureties of Hardenburgh,- in 1791, are no more liable for the performance of the duties of the commission of 1785, 6 or 7, than the sureties of John Denn would be in the case which I have put.

I am, therefore, of opinion, that the present applicant has failed in his ease. He has at least hit upon the wrong year, the wrong bond, the wrong men.

Again. By the statute of limitations, passed [261] February 7, 1799, it is enacted “that any prosecution thereafter to be had, or commenced upon any sheriff’s bond, heretofore given, shall in no wise operate against the sureties, unless such prosecution shall be had or commenced within six years after the passing of the act.”

It has been said in the argument, that this act does not apply, because the action on that bond was actually commenced and judgment entered before it was passed. And that all persons interested have a right to come in under that judgment.

I observe that in the penning of this act, great caution seems to have been used. In the first section it says, all actions of trespass quare, clausum fregit, <fec., shall be commenced and smd, within six years; in the second section, all actions of trespass for assault, &c., shall be commenced and sued within four years; and in the third, oil actions upon the case for words, &c., shall be commenced and sued within two years.

But when it comes to speak upoi i this subj ect, the phraseology is quite changed; it is such as seems to me to be intended to meet this case. It says that any prosecution thereafter to be had or commenced on sheriff’s [*] bonds, &c., in ¡order to affect sureties, shall be within six years after the passing of the act.

Any prosecution! How, what is a prosecution? It is not an action, it is not a suit; none of our books confound it with those two words. It is the following up or carrying on of an action or suit already commenced, until the remedy be attained. Here the State in 1799, obtained a judgment for the benefit of all concerned, so far as the penalty of the bond would go. Any person aggrieved, as the law then stood, had a right to come in and pursue it, or if you please, prosecute it, by assessing his damages, taking out execution and levying his money, at any time within twenty years.

But then the Legislature step in, and shorten this time. They restrain it to six years, so far as it concerns the sureties j and it seems to me, upon the most just and reasonable principles.

Here, then, this prosecution, this motion to assess damages and take out execution, has not been had or commenced Ávithin the six years. If, therefore, I am correct in my understanding of the term, prosecution, (and it seems to me to have been sought for, for this very purpose,) I should be of opinion, that the application comes too late.

[262] Besides. As to the reason of the thing. It was certainly intended by the Legislature to give a reasonable time to all interested to make their demands, and if they neglected so to do, that the sureties, who were innocent men, should be entirely exonerated. But if the mere entry of judgment upon one of these bonds for the most petty default, should be construed to let in all claimants for whatever sums ' they might make demand, and at whatever distance of time, the act would become in a great measure nugatory. The estates of sureties would be bound, would be liable to be wrested from them and their posterity, at almost any distance of time, without the possibility of their finding out the incumbrances, or securing themselves against their [*] principal. The design of the Legislature would be defeated. On both these grounds, I think the applicant must take nothing by his action.

Rossell, J., and Pennington, J., agreed with the Chief Justice on the first point; but gave no opinion on the statute limitation, having made up their opinions on the first point, Avhich settled the question.

Motion refused.

Cited in Inhabitants Knowlton v. Read, 6 Halst, 320; Mushback v. Ryerson, 6 Halst. 346; State v. Roberts, 7 Halst. 114; State v. Hamilton, 1 Harr. 153. 
      
       Vide 7 Halst. 116.
      
     
      
      
        Rev. 410.
      
     
      
       Vide 6 Halst. 321.
      
     