
    [Chambersburg,
    October 31, 1825.]
    SMITH against MILLER.
    IN ERROR.
    The lien of a recognizance entered into by the sheriff and his sureties, is gone after the lapse o£ five years without suit on the recognizance, notwithstanding there has been a suit on the bond given at the same time.
    Writ of error to the Court of Common Pleas of Adams county, where the plaintiff in error was plaintiff below.
    This was an action of assumpsit, for money had and received, Etc., brought by Robert Smith against Thomas C. Miller, sheriff of the county of Adams. A case stated in nature of a special verdict was submitted to the court below, on which judgment was given for the defendant. The substance of the case, was as follows: Samuel Galloway being the sheriff elect of Adams county, entered into a recognizance and a bond to the commonwealth, with John Galloway and Richard Brown his sureties, in the sum of eight thousand dollars, bearing date the 13th day of October, 1815, conditioned for the faithful performance of the duties of the said Galloway, as sheriff of the said county. A suit was brought on this bond against Richard Brown, and judgment recovered against him, within five years from its date. But no suit was brought oh the recognizance, and the question was, whether after the lapse of five years without suit, the lien of the recognizance was extinguished. If it was, the plaintiff was not entitled to the money in the hands of the defendant proceeding from an execution, at the suit of the Gettysburg Bank, directed to the defendant, as sheriff of the county of Adams, and levied on the land of the said Richard Brown.
    
    
      Durkey and Dobbin, argued for the plaintiff in error, but the court did not hear Stevens for the defendant in error.
   The opinion of the court was delivered by

Tilghman, C. J.

The case depends on the act “directing sheriffs and coroners to give sufficient sureties for the faithful execution of their official duties, &c., passed the 28th of March, 1803. (4 Sm. L. 45.) This act directs (sect. 1.) that the sheriff of each county, before he shall be commissioned, or execute any of the duties of his office, shall enter into a recognizance and become bound in an obligation, with at least two sufficient sureties, in the sums and manner thereinafter directed. And in the fourth section, on which this question arises, it is enacted as follows; “ All the lands, tenements, and hereditaments, which such sheriffs, coroners, and their sureties shall possess, or be intitled to, in every county within this commonwealth, shall be bound by a recognizance, taken in manner aforesaid, as effectually as a judgment to the same amount, in the Court of Common Pleas of all the counties aforesaid, might or could now bind the same.” The mode of maintaining an action on such recognizances and bonds was then prescribed, after which there is a proviso,u that such suit or suits, against such sureties, their heirs, executors, and ad-. ministrators, shall not be sustained by any court of this commonwealth, unless the same shall be instituted within five years after the date of such obligation or recognizance.” If no suit can be maintained on the recognizance, its lien is gone; because a lien, with no means of enforcing it, would be fruitless. According to the words of the law, no suit can be maintained, unless instituted within five years front the date. But it is contended, that the bond and recognizance are but one security; and a suit on one, keeps alive the lien of the other, in the present instance, there are the same sureties in the bond and recognizance; but iheplaintiffs’ case is not strengthened by that accidental circumstance; because the law does not require that the sureties should be the same. It may well be supposed, that many persons would consent to become bound in a bond, who would be afraid of a recognizance ; because it would embarrass the alienation of any of their real property in any part of the state. The proviso was intended for the protection of sureties, and to encourage people to become sureties for sheriffs ; and, therefore, should not be strained against them, in its construction. When it is said, “ that no suit shall be maintained, unless it be instituted within five years after the date of such obligation or recognizance, it is to be construed, reddendo singula singulis — no suit on the bond, unless brought within five years from its date, nor any on the recognizance, unless brought within five years from its date. This is the plain and natural construction. Nor does it bear hard upon those who have an interest in the security given by the sheriff; because actions may be instituted both on the bond and recognizance at the same time, and prosecuted to judgment and execution until satisfaction be obtained. It is the opinion of the court, therefore, that the lien of the recognizance, in this case, was gone ; no action having been instituted on it within five years after its date.

The judgment of the court of Common Pleas is to be affirmed.

Judgment affirmed.  