
    Benjamin Mather versus Asa Green.
    The right of action against a sheriff, for taking insufficient bail, commence» upon the sheriff’s return of non est inventus upon the execution against the principal; and the statute of limitations begins to run from that time.
    Case against the defendant, a deputy sheriff of the county of Hancock, for taking insufficient bail. Issue being joined on the statute of limitations, the parties submitted the action to the determination of the Court, upon the following facts.
    The plaintiff sued an original writ against one Thomas Wasgatt, which was delivered to the defendant, with special directions to attach sufficient property, or hold Wasgatt to bail. On [ * 61 ] the 5th of June, 1813, the defendant made his * return upon the writ, that he had arrested the body and taken bail. The plaintiff, having obtained judgment in that action, sued out his execution, returnable in September, 1813, and delivered the same to the defendant, who returned it unsatisfied, certifying that he could find neither the body nor property of the debtor. The plaintiff then sued his scire facias against Stephen Higgins, who was taken by the defendant Green, as the only bail in the original suit, and, having recovered judgment in April, 1814, against Higgins, delivered his writ of execution to one Langdon, another deputy sheriff of the same county, who, on the 2d day of November following, returned it unsatisfied, being able to find neither the body nor any property of Higgins. The present action was commenced in December, 1819.
    
      French, for the plaintiff,
    contended that the right of action against the officer did not commence, until the insufficiency of the bail was ascertained by the execution, issued on the scire facias, being returned unsatisfied. It was not until that event that the insuffi • ciency of the bail was ascertained; and the creditor is bound to pursue all his other legal remedies, before he can call upon the officer. Upon this ground the plaintiff is not barred by the statute .
    
      Saltonstall, for the defendant.
    In the case of Sparhawk vs. Bartlett 
      , it was considered by the Court that the prosecution of bail was no release of the right of action against the sheriff; and it seems to follow, from the whole course of reasoning in the case, that there is no necessity of first prosecuting the bail. And in Young vs. Hosmer 
      , it is expressly decided, that it is not necessary to show any proceedings against the bail, in order to prove the insufficiency, especially if but one surety has been taken; but the insufficiency may be proved in any other way by competent evidence
    That the general statute of limitations may be. pleaded in this action, appears from the case of Cæsar vs. Bradford 
      .
    *In Rice & Al. vs. Hosmer, cited for the plaintiff, and [ * 62 ] exceedingly like the case at bar, it was contended on the part of the defendant, that the statute of limitations began to run from the time of the officer’s return upon the original writ. But it was decided that, in an action against the sheriff, for the default of his deputy in taking insufficient bail, the statute of limitations commences only from the return of non est inventus against the principal.
    The language of the statute limiting actions against sheriffs to four years , is the same as the general statute of limitations .
    
      
       12 Mass. Rep. 127. Rice & Al. vs. Hosmer.—9 Mass. Rep. 479, Long vs. Billings.
      
    
    
      
       2 Mass. Rep. 188.
    
    
      
       11 Mass. Rep 89.
    
    
      
       13 Mass, Rep. 169.
    
    
      
      
        Stat. 1796, c. 71.
    
    
      
      
        Slat. 1786, c. 52.
    
   By the Court.

The question in this case is, At what time did the plaintiff’s right of action accrue ? It is argued for the plaintiff that his right did not commence, until after the return of non est inventus upon his execution against the bail. But it is our opinion that the plaintiff might have commenced his action against the defendant immediately after the return of non est inventus upon his execution against the principal debtor. The plaintiff should then have inquired into the sufficiency of the bail. Had he done that, he would have at once ascertained the default of the defendant, in that he had taken but one surety, and his remedy was open to him. More than six years having elapsed from that time to the com mencement of the present suit, the action is barred by the statute.

Judgment for the defendant.  