
    No. 4034.
    Cohen & Wilson v. William Golding and Francois Lacroix.
    This suit is brought against th© sureties of a late sheriff to recover the amount of a judgment rendered against him. The main defense is the prescription of two years, pleaded under section 3546, of the He vised Statutes.
    It is true that the defendants were not sued within two years from the day of the commission of the act complained of, but their principal,, the sheriff, was, and this interrupted prescription as to them.
    Judicial pursuit as to the principal interrupts prescription as to the surety, and suit against the surety interrupts it as to the principal.
    APPEAL
    
      Beaumont, J. Sornor <& Benedict, for plaintiffs and appellees.
    
      Bice <& Whitaker, M. JE. Mvaudais, for defendants and appellants.
   Wyly, J.

The defendants, the sureties of George W. Avery, late sheriff of the parish of Orleans, appeal from the judgment against them for $941 85, the amount of a judgment against their principal for illegally releasing the seizure, pending an injunction, in the case of these plaintiffs v. Joseph Canall, No. 18,768 on the docket of the Fifth District Court.

The seizure was released on twenty-fifth June, 1868, and within two years thereafter, to wit: On twentieth June, 1870, suit was brought againt Avery for the damages resulting therefrom; and there was judgment against him on twenty-fourth January, 1871, for $941 85. Failing to make the money on execution against Avery this suit has been brought for the amount thereof against the defendants, the sureties on his official bond.

The main defense is the prescription of two years pleaded under section 3546 of the Revised Statutes, which declares that: The sheriffs and their securities shall be able to prescribe against their acts of misfeasance, nonfeasance, costs, offenses, and quasi offenses, after the lapse of two years from the day of the omission or commission of the act complained of.”

It is true the defendants were not sued within two years from the day of the commission of the act complained of, but their principal, Avery, the sheriff, was, and this interrupted prescription as to them.

Judicial pursuit as to the principal interrupts prescription as to the surety, and suit against the surety interrupts it as to the principal. Mellen v. Scott, 9 An. 174; Ferguson v. Glaze, 12 An. 667; 2 An. 916, 970; 5 An. 551; 14 An. 144; Revised Code, 2097, 3553.

Judgment affirmed.

Morgan, J.,

dissenting. Plaintiffs obtained a judgment on the twenty-fourth January, 1871, against Avery, late sheriff, and one Mora, in solido, for $941 85. The ground of the action arose out of certain alleged tortious and illegal acts of Avery and his deputies. The fieri facias issued on that judgment was returned nulla bona. The object of this suit is to recover the amount of that judgment from the defendants, who were sureties on Avery’s official bond.

They plead the prescription of two years.

This suit was instituted on the seventh October, 1872.

The illegal act complained of in the suit against Avery and Mora was done on the twenty-fifth June, 1870.

Section 3546 of the Revised Statutes provides that, Sheriffs and their securities shall be able to prescribe against their acts of misfeasance, nonfeasance, costs, offenses and quasi offenses, after the lapse of two years from the day of the omission or commission of the act complained of.”

The act complained of was committed more than two years before this suit was instituted. The proceedings against Avery, which resulted in a judgment against him, interrupted prescription as to him, but has no effect upon the ‘defendants, his sureties, who were not parties to that suit.

I therefore dissent from the opinion just rendered.  