
    Ex parte Chester.
    On applying for leave to prosecute the official bond of a sheriff under 2 US. 476, § 1, it is not necessary to show a previous recovery against the sheriff for the default or misconduct complained of.
    
      N. Hill Jun., in behalf of Chester,
    moved for leave to prosecute the official bond of the sheriff of Oswego county. He read an affidavit stating that a fi. fa. in favor of Chester had been delivered to the sheriff and returned nulla bona, notwithstanding the defendant owned a large amount of real and personal property which might have been levied on, &c.
    
      Hill. It does not;
    nor does the statute now in force require that it should. (2 R. S. 476, § 1.) Under the actof 1813, (1 R. L. 421, § 6,) a previous recovery was held to be necessary; (The People v. Spraker, 18 Johns. 390;) but the law was changed in this respect as early as 1827, (Sess. Laws of 1827, p. 219, § 5,) and the revised statutes have in effect, if not in express terms, adopted the alteration. (See 3 R. S. 758, note to § 1.)
   Nelson, Ch. J.

Does the affidavit show that a recovery has been had against the sheriff?

Nelson, Ch. J.

Take a rule for leave to prosecute.

Rule accordingly..  