
    [Pittsburg,
    September 22,1823.]
    WITHROW and another against the Commonwealth for the use of AUSTIN. BEASON’S Administrators against the same.
    in error.
    A scire facias on the sheriff’s official recognizance ought to state, how the plaintiff was damnified, in what action the sheriff violated bis duty. A general allegation that the sheriff had not paid over to the parties the sums to them belonging which have come to Iris hands, and especially to the party who sues in the name of the commonwealth, is erroneous and bad.
    On such recognizance each suitor who is damnified may sue a sdre facias, and recover judgment for the amount in which he is aggrieved.
    These were writs of error to the Court of Common Pleas of Fayette county. The first of these cases was a scire facias, issued in the name of the commonwealth for the use of John M. Austin against John Withrow and Nathaniel Mitchell, setting forth that tl whereas John Withrow and Nathaniel Mitchell, on the 23d of October, 1817, before A. MlClean, Esq., recorder for the county of Fayette, at his office in Union Town, came in their proper persons, and acknowledged to owe unto the commonwealth of Pennsylvania 10,000 dollars, to be levied oí their goods and chattels, lands and tenements, upon condition, that if John Withrow should and do without delay, and according to law, well and truly serve and execute all writs and process of the commonwealth of Pennsylvania to the said John Withrow directed, and should and do from time to time, upon request to him made for that purpose, well and truly pay, or cause to be paid to the several suitors and parties interested in the execution of such writs or process, their lawful attornies, &c. all and every sum and sums of money to them respectively belonging, which should come to his hands, &e. (verbatim with the form prescribed by the act of assembly). Never» theless, the said John Withrow hath not paid or caused to he paid to the several suitors and parties interested in the execution of the writs or process to him committed, or to their lawful attornies, &c. the sum and sums of money to them respectively belonging, which have come into his hands, and especially to John M. Austin, as by the insinuation of the said John we have received. And because we are willing that those things which in our said court are rightly acted, should be demanded by due execution, we command you, &c. to make known to John Withrow and Nathaniel Mitchell, that they be and appear before our judges at Union Town, &c.
    
    The scire facias in the second case was substantially the same. The plaintiff below entered a rule of reference in both cases, and an award was rendered in his favour in each for the sum of 129 dollars 83 cents, on which judgments were rendered.
    Several errors were assigned in this court, but the following, which constituted the third error assigned, was the only one on which the court gave an opinion.
    3d. That if this action has been instituted upon the official recognizance of John Withrow,- as sheriff of Fayette county, and of his sureties, the process, judgment, and all prpceedings thereon are coram nonjudice, because,' first, the act of assembly of the 28th March, 1803, which creates such security, prescribes a remedy thereupon expressly only to the commonwealth, or any individual or individiials, who shall be aggrieved by the misconduct of the sheriff. But it is not alleged on this record, that either the commonwealth or the person for whose use the suit was brought, had been so aggrieved. Second, the remedy prescribed in such cases by the said act is an action against the sheriff and his sureties, their heirs, executors, or administrators, but this action was brought against only one of the cognizors, contrary to the evident policy of the act, and contrary to its express provisions at once jeopardizing public security, and exposing the cognizors and their representatives to oppressive accumulation of costs necessarily incident to a several suit against each cognizor, or his representatives.
   The opinion of the court, (Tilghman, C. J. being absent,) was delivered by,

Duncan, J.

Several errors have been but as this judgment is reversed, and a venire facias de nova will not be awarded, it is not made the duty of the court, as the points nowr made were not made in the Court of Common Pleas, to give their opinion on every point and exception now taken, and in this case several of the exceptions do not appear distinctly on the record, nor arise on the state of the pleadings: the court will only take notice of the third error assigned. The writ of scire facias issued in this case is in the nature of an original action. The scire facias is a declaration, and the breaches should be assigned with as much certainty as the law requires in a declaration,- or suggestion of breaches on the reeord under the statute of William. The condition of the recognizance is, that the sheriff shall duly execute all process directed to him, and pay over on request to the several suitors and parties interested in the execution, their attornies, factors, agents, or assigns all such monies respectively to them belonging, as shall come to his hands, &c. The act prescribes a form of proceeding. “Whenever the commonwealth or any individual shall be aggrieved by the misconduct of any sheriff, it shall and may be lawful to institute a scire facias, on such recognizance against such sheriff and the sureties, their heirs, executors or administrators, and if on such suits, it shall be proved that damages have been sustained, and a verdict and judgment shall be thereupon given, execution shall issue for so much only as shall be found by the said verdict and judgment, which suits may be instituted, and like proceedings thereupon be had, as often as damages shall be as aforesaid sustained.55 This is a new course adopted by the legislature; instead of a judgment in the name of the commonwealth against the sheriff and his sureties for the penalty of the recognizance for the use of all the suitors, in which each afterwards proceeds by scire facias to recover his own peculiar damages, as is usual in official bonds, each suitor may bring in the name of the commonwealth for his use an original scire facias, assigning the breach by which he complains he was aggrieved, and recover a judgment 'for that amount. But that must state quomodo he was damnified, in what action or legal proceeding the sheriff violated his duty, received the money of the person for whose benefit the action is brought. Nothing of this kind is to be found in this writ, which only states, ' that John Withrow, the sheriff hath not paid or caused to be paid to the several suitors and parties interested in the execution of the writs or process to him committed, or to their lawful attornies, factors, &c. the several sums of money to them z’espectively belonging, especially to one John M. Austin, as the court is informed by his insinuation. What sum of money — in what action recovered — how recovered ? Who recovered the writ does not state. How could the defendants,particularly thesurety,come prepared to answer so uncertain and vaguean insinuation as this, and how, in the nazne of common sense, could they plead this recovery in bar of any future action John M. Austin might choose to institute ? The law delights in certainty. The great object of all pi'oeeedings is, to reduce the matter in dispute to some definite point, either of law or fact. What issue, what suit would a juz'y he sworn to try in this case ? Only 'the amount of the recognizance could be recovered, though the damages sustained by all the suitors might exceed that amount. How then in answer to a scire facias could the sureties • plead, that there had been already recovered from them by other suitors the whole amount of their recognizance, for it would be incumbent on them not only to show the recovery, but on what aecount, on what process the sheriff had rendered himself liable. The scire facias is substantially and incurably vicious, and the judgment on it erroneous. These two cases are the same in terms on this point, and the judgments in both are reversed.

Judgment reversed.  