
    * Dudley Todd versus Anne Bradford, Administratrix.
    One having a right of action against the representative of a deceased sheriff, whose estate is represented insolvent, for the misfeasance of the sheriff or bis deputy, must prosecute his claim before the commissioners, and obtain a decree of the judge of probate in his favor, in order to entitle him to a remedy upon the bond given by the sheriff, for the faithful performance of his office, &c.; and he cannot maintain an action at law, except in the cases provided by the laws respecting insolvent estates.
    This was an action of the case against the defendant, administratrix of the estate of Samuel Bradford, Esq., deceased, late sheriff of the county of Suffolk. In the first count of the declaration, the plaintiff alleges that, at the March term, 1817, of the Circuit Court of Common Pleas at Portland, he recovered judgment against one Abraham, Moore of Boston, for the sum of 193 dollars, 57 cents; that on the 24th of June then next following, he sued out his writ of execution, and delivered the same, on the same day, to «S'. Bell, late of said Boston, deceased, then and for more than six months thereafter a deputy of the said sheriff, to be duly executed and returned, according to the precept thereof, to the clerk’s office of the county of Cumberland, within three months from the date thereof; that on the 18th of September, then next following, the said Bell received of the said Moore full satisfaction of the said execution; and that afterwards, in the lifetime of the said Bell, the plaintiff requested of him payment of the sums so received; and after his decease also requested payment of S. Badlam, his executor; both of whom neglected and refused the same.—The second count sets forth the recovery of the judgment, the issuing of the execution, and the delivery of it to Bell, as in the first count; and that on the same 24th of June, and at divers days and times after-wards, and before the return thereof, the said Moore, being in the precinct of the said sheriff, was in the presence of the said Bell, who might have taken the body of Moore, but neglected so to do; nor did he levy the execution on the property of Moore, or ever make return thereof.—The third count charges that Bell, having on the 18th of the same September taken and arrested Moore, and detained him in custody, afterwards wrongfully suffered [ * 568 ] him to escape and go at * large, out of the custody of the said sheriff and his deputy, the judgment aforesaid being still unsatisfied.
    The defendant pleads, 1st. The general issue, that Bell in his lifetime was not guilty. 2dly. In a plea in bar, the defendant sets forth the provisions of the “Act for the Distribution of Insolvent Estates,” and proceedings under it respecting the estate of her intestate, to the return of the commissioners, and the acceptance of the same by the judge of probate. To this plea the plaintiff demurs generally, and the defendant joins in demurrer.
    
      Whitwell, for the plaintiff,
    contended, that the statute relied upon for the defendant did not apply in this case. The sheriff, as such, cannot be insolvent, nor can his estate be so considered, in relation to his official liabilities. While he is alive, his person is inviolable; and for the security of those, who might otherwise suffer by his neglect or that of his deputies, he is required by law, under the penalty of forfeiting his office, to “ give sufficient security for his faithful performance of the duties of his office, and to answer the malfeasance and misfeasance of all his deputies ” . Such security may be in money deposited in the public treasury, land conveyed in mortgage to the commonwealth, or in bond with responsible sureties. In whichever of these ways the security is given, the commonwealth undertakes for his solvency; and it could never be the intention of the legislature, after requiring and obtaining such security, to send a party, who has suffered by the malfeasance or the misfeasance of a sheriff or his deputy, to commissioners of insolvency, to solicit a dividend of the sheriff’s estate in common with his private creditors.
    By the statute of 1805, c. 99, provision is made that actions for the malfeasance or misfeasance of the sheriff, or of any of his deputies, may be sued against the executors or administrators of such sheriff, in the same manner as if the cause of such action survived at the common law; and when the condition of the sheriff’s bond shall be broken, * the party suffering [ * 569 ] may cause a suit to be instituted on the bond in the name of the treasurer, in the manner of probate bonds. But it further provides that no such suit shall be instituted by any person for his own use, until such person shall have recovered judgment against the sheriff, his executors or administrators, &e. The plaintiff has instituted this suit, with a view to recover such a judgment, that he may be entitled to his legal remedy upon the official bond of the deceased sheriff. He has no expectation of an execution to issue upon the judgment he seeks in this action.
    
      Ward, jun., for the defendant.
    
      
      
        Stat. 1783, c. 44, § 1.
    
   Parker, C. J.,

delivered the opinion of the Court.

The plaintiff, admitting by his demurrer the facts set forth in the plea in bar, denies the operation of the statute of insolvency in relation to suits against the representatives of sheriffs; and has argued that the legislature did not contemplate the insolvency of a sheriff, or provide for such an event; there being always security taken to the public, for the use of all the citizens who may be injured by the neglect or breach of duty of such officer.

It might be reasonable for the legislature to adopt the principle suggested by the counsel for the plaintiff, and to frame laws to carry it into execution; but the statute, on which alone the plaintiff’s action can be maintained, giving a remedy which did not exist at common law, places that remedy upon the same footing with suits against the representatives of private persons, whose contracts by law survive against executors and administrators. By the common law, a right of action against a sheriff, for his own official wrong, or that of his deputies, would not survive. The statute of 1805 causes it to survive; but it gives no other effect to the action against his executors, than it would have if it were an action upon Contract.

It is said, however, that the action is brought merely for the purpose of ascertaining by judgment the sum due, in order [ * 570 ] that the plaintiff may be entitled to an action in *the name of the treasurer, upon the sheriff’s bond ; and that such being the object of the suit, the insolvency of the sheriff can be no legal bar to the action.

But if the plaintiff can proceed to judgment, notwithstanding the plea of insolvency, he will be entitled to his execution; and having that, may levy it upon the estate of the deceased sheriff, instead of suing the official bond; and in such case injury will be done to the other creditors of the estate, which was certainly not intended by the legislature.

The first section of the statute before referred to gives to the injured person a right of action upon the bond ; but requires that, before the suit shall be instituted, judgment shall be recovered against the sheriff, his executors or administrators ; or that there shall be a decree of the judge of probate, allowing the claim for such injury. This last provision is evidently predicated upon the supposition that a sheriff may die insolvent; for in no other event can there be a decree of a judge of probate, allowing any .claim against his estate; and it follows that the general statute of insolvency must apply to demands against sheriffs, for misfeasances in their official capacity, and for the misfeasances of their deputies; as well as to any private debts of those officers. And if this statute does apply, then, after a representation of insolvency, no action can be brought against the executor or administrator; but the demand should be laid before the commissioners, and the debt ascertained by them, unless referred to a court of law, in the manner provided by that statute.

It may be said that it will be hard for the plaintiff to lose his remedy upon the bond by reason of his omitting to file his claim with the commissioners ; when it may be that the estate to be distributed would be so small as to make this remedy not worth pursuing. But this course is necessary to give a right to further proceedings upon the bond. The statute requires that the creditor should get all he can from the estate of the sheriff before he resorts to the sureties, if the estate be insolvent. Justice requires this *too; for the sureties can file no claim until they [ * 571 ] have been obliged to pay; and if the creditor may omit to get a dividend, and call upon the sureties for the whole, the commission may be closed, and they have no opportunity to get an indemnity.

To the objection that this construction straitens the time, within which an action may be brought against the executors of the sheriff, the answer is, that if such is the legal operation of the statute, it is not to be complained of. The same effect is produced by the operation of the statute of insolvency in actions upon contracts; and there can be no doubt of the right of the legislature, by general laws, to prescribe the term within which demands upon the estates of deceased- persons shall be limited; although by other general laws a different period is assigned for the right to commence actions, when the debtor is alive, or his estate solvent.

Defendanfs plea good  