
    *State of Ohio, for the use of Fulton & Co., v. C. Colerick, late Sheriff, and others.
    In a suit against sheriff’s securities, judgment in an action for a false return against the sheriff, though no notice of the pendency of the suit he given to the securities, is prima facie evidence of the amount to he recovered.
    This cause came before the court, by adjournment from Knox-county. It was an action of debt against Coleriek, who had been sheriff, and his securities. The declaration was on the obligatory part of the bond. Plea, conditions performed. Replication setting out a judgment against Coleriek, as sheriff, at the suit of the plaintiffs, for a false return on an execution sued out by them, upon a judgment in their favor, and put into his hands to be executed. To .this replication the defendants, demurred. Upon argument, the court overruled the demurrer, and neither party demanding a jury, proceeded to assess the damages, in doing which, no evidence was offered or given but the record of the judgment against the sheriff. The defendants moved for a new assessment of the damages, upon the ground that this evidence was not admissible. And this question was adjourned here for decision.
    Silliman, in support of the motion,
    contended that the record of the judgment against the sheriff was not admissible at all, unless it was shown that notice of the pendency of the suit against him was given to the suroties, and an opportunity afforded them to defend it. He cited 7 Cranch, 322; 6 Johns. 158; 1 Stark. Ev. 189; 15 Mass. 6; 5 Bin. 184; 4 Bin. 256, 352; 4 Dallas, 436.
    
      Goddard, for the plaintiff,
    maintained that the judgment against the sheriff was prima facie evidence, and could only be impeached for collusion or mistake. He cited 4 Wash. 31; 3 Atk. 248; Greens. Vir. 235.
   By the Court:

We take the distinction to be, that where the sureties have notice of the suit, and may, or do make defense, the judgment against the principal is conclusive against them. Where such notice is not given, the judgment against the ^principal is prima facie only. It may be impeached for Collusion, or for mistake. But, until so impeached, it is sufficient to entitle the ¡plaintiff to recover the amount for which it is rendered. This court have so ruled in the case of Commissioners of Brown Co. v. Butt, in error, 2 Ohio, 347. And we see no reason to be dissatisfied with the opinion then given. In this case no evidence was offered by the defendants. The motion for a new assessment of damages is overruled.  