TITLE 5. cial expenditures, by the board authorised to audit such accounts, if such suit appear to have been necessarily commenced in good faith. To issue against certain officers. $108. In suits by and against loan-officers, commissioners of loans, commissioners of common schools, and commissioners of highways, trustees of school districts, and trustees of gospel and school lots, the debt, damages or costs recovered against them, shall be collected in the same manner as against individuals; and the amount so collected, shall be allowed to them in their official accounts. Application to sue she rifl's bond. Proof to support it. Suit when and how brought. TITLE V. OF SUITS AGAINST SHERIFFS, SURROGATES AND OTHER OFFICERS, SEC. I. When and to whom application for leave to sue sheriff's bond. 2. Proof and papers to accompany application. 3. Order for prosecution; suit how to be brought. 5. Judgment not to bar suits for other delinquencies. 6. Other parties may apply during suit or after judgment. 7. Suits by them not to be affected by other suits or judgments. 8. Same plaintiff may sue for new delinquency. 9. Scire facias upon judgments for delinquency prohibited. 10. Suits on such bonds private suits, &c. 11. Judgment and costs against relator as plaintiff. 12. Matters necessary to be stated with plea of judgment recovered. 13. In what cases sureties to be acquitted on such plea. 14. When to be acquitted of a portion of the claim. 15. Direction on execution against sheriff and sureties. 16. When execution against bodies to issue. 17 & 18. Distribution of monies collected among several plaintiffs. 20. Proof to support it; suit how to be prosecuted. 21. Proceedings in suits on bonds of register and assistant. $ 1. Whenever a sheriff shall have become liable for the escape of any prisoner committed to his custody, or whenever he shall have been guilty of any default or misconduct in his office, the party injured thereby, may apply to the supreme court for leave to prosecute the official bond of such sheriff. 32 $2. Such application shall be accompanied by proof of the default or delinquency complained of, and that no satisfaction for the same has been received; and by a certified copy of such official bond. S3. Upon such application and proof, the court shall order that such bond be prosecuted; and the applicant shall thereupon be authorised to prosecute the same, in the said supreme court only, in the name of the people of this state, stating in the process, pleadings, proceedings and record in such action, that the same is brought on the relation of such applicant. (32) 1 K. L. p. 421, § 6; Laws of 1827, p. 219, § 5. § 4. In such actions, the same pleadings and proceedings shall be TITLE 5. had, as are provided by law in the case of suits upon bonds, with other Pleadings, conditions than for the payment of money, except as herein otherwise &c. therein. provided, and judgment shall be rendered for the defendants, in the like cases. quencies not S5. But such judgment shall not be a bar to any other suit that Other delinmay be brought on the same official bond, by the same plaintiff, or by affected. any other plaintiff, for any other delinquency or default of such sheriff, than such as was assigned as a breach of the condition of such bond, in the action in which such judgment was rendered.33 may suc. $ 6. During the pendency of any suit upon such official bond, or Other partion after judgment rendered in such suit, any other party aggrieved by the default or delinquency of such sheriff, may, in like manner, apply to the supreme court for leave to prosecute such official bond. $7. Upon such leave being granted, the applicant may prosecute Not affected such bond, in the manner herein before provided; and the pendency of any other suit, at the relation of any other person, on the same bond, or a judgment recovered by or against any other person on such bond, shall not abate, or in any manner affect such suit, or the proceedings therein, except as herein provided. by other suits plaintiff may $8. Any person who may have recovered any judgment upon When ame such official bond, may, in like manner, apply for leave again to pro- sue. secute such bond, whenever he is aggrieved by any other default or delinquency than such as shall have been the subject of the former action, and shall proceed therein in like manner as herein before provided. not to be $9. No scire facias shall be brought upon any judgment render- Scire facias ed upon such official bond, by the party at whose relation such judg- brought. ment was obtained, or by any other person, for any breach of the condition of such bond. private suits. $10. Every suit brought upon such official bond, and every judg- Such actions ment rendered therein, shall be deemed the private suit and judgment of the party on whose relation the same shall be brought or obtained; such suit may be discontinued and the relator may be non-suited, as in private suits; and the judgment therein may be cancelled and discharged by the relator, in the same manner as if he were the nominal plaintiff, and shall be deemed satisfied, in the same cases as judgments by individuals. against rela S 11. If the suit be discontinued, or the relator be non-suited, or Judgment judgment be rendered for the defendants, upon verdict, demurrer, or tor. otherwise, costs shall be awarded against the relator, as if he were the nominal plaintiff, and judgment shall be rendered for such costs, and execution thereon awarded against him, in the same manner. (33) Laws of 1827, § 7. TITLE 5. Plea of judg meat recover ed, when not good. When sare ties to be acquitted. When of a portion. $12. No such suit shall be barred, nor shall the amount which the plaintiff may be entitled to recover therein be affected, by any plea or notice made by any surety in such bond, of a judgment recovered thereon, unless it be accompanied by an allegation that the sureties in such bond, some or one of them, have been obliged to pay the damages assessed in such judgment, or some part thereof, for the want of sufficient property of such sheriff whereon to levy the same, or that they will be obliged to pay the same, or some part thereof, for the same reason; nor unless such plea or notice be verified by the oath of the defendant making the same. S 13. If it appear that the amount of any damages so recovered, which such surety has been obliged to pay, or will be obliged to pay, as specified in the last section, is equal to the amount for which such defendant shall be liable, by virtue of the bond, he shall be acquitted and discharged of all further liability, and judgment shall be rendered in his favor. S 14. If it shall appear that the amount of any damages so recovered, and which such surety has been obliged to pay, or which he will be obliged to pay, is not equal to the amount of such surety's liability, the amount thereof shall be allowed to such defendant, in estimating the extent of his liability in any such action. Direction on' $ 15. Whenever a judgment shall be obtained against a sheriff and execution. Execution against bodies. Several judg ments; bution. his sureties, a direction shall be endorsed on the execution issued thereon, by the attorney issuing the same, to levy the amount of such execution, in the first place, of the property of such sheriff, and if sufficient property of such sheriff cannot be found to satisfy such execution, then to levy the deficiency of the property of the sureties.34 $ 16. In every such case of a judgment against a sheriff and his sureties, no execution against the bodies of the defendants shall be issued, until an execution against their property shall have been returned unsatisfied, in whole or in part. $ 17. Whenever several judgments shall be obtained at the same me; distris term, upon any official bond of a sheriff, for damages amounting in the whole to more than the sums for which the sureties therein shall be liable, the supreme court shall order the monies levied upon such judgments, from the property of the sureties, to be distributed to the relators respectively in such judgments, in proportion to the amount of their respective recoveries.35 ib. monies collected. $ 18. If executions be issued upon several judgments obtained at the same term, upon any such official bond, and sufficient monies shall not be raised to satisfy all of the said executions, the supreme court shall distribute the monies collected on such executions, to the rela (34) Laws of 1827, § 7. (35) 1 R. L. p. 422, § 6. tors respectively in such judgments, in proportion to the amount of TITLE 5. their respective recoveries.36 rogates' $ 19. Whenever the surrogate of any county shall be guilty of any Suits on surdefault or misconduct in his office, the party aggrieved thereby may bonds apply to the court of chancery for leave to prosecute the official bond of such surrogate. cution of S 20. Such application shall be accompanied by the same proof Proof; prose herein required in proceedings on sheriff's bonds; and upon such suit. leave being granted, the applicant shall be authorised to prosecute such bond in the name of the people of this state, in the supreme court only, in the same manner, with the like effect, and subject in all respects to the provisions herein contained, in respect to suits on the of ficial bonds of sheriffs; and the supreme court shall possess the same powers in relation to such suits. of register, cory. $ 21. In suits upon the official bonds of the register and the assist- Suit on bond ant-register of the court of chancery, prosecuted by the order of the &c. in chanchancellor, the same proceedings shall be had, and such suit shall be prosecuted and judgments rendered therein, in the same manner herein prescribed in relation to suits on the official bonds of sheriffs, except as herein otherwise provided. of collec $ 22. If there shall have been any delinquency of such register or Distribution assistant-register, in not accounting for, or paying over, any monies tions, &c. belonging to the common fund appertaining to the court of chancery, the chancellor shall order his bond to be prosecuted in the name of the people of this state, on the relation of the successor in office of such register or assistant-register; and the same proceedings shall be had therein as in other cases, except that when there shall be a deficiency in the monies collected on such bond, to satisfy all the judgments that may have been recovered, a preference shall be given in the distribution of such monies, to judgments recovered on the relation of private parties, over the judgments recovered on the relation of the successor to such register or assistant register. chancery. S 23. In suits upon the official bonds of clerks in chancery, the Clerks in same proceedings shall be had, as are above provided in suits upon the official bond of the register in chancery. of New $24. Proceedings for the prosecution of any official bond given County clerk by the clerk of the city and county of New-York, may be had in the York. manner herein directed in respect to official bonds of sheriffs, except that applications for that purpose may be made to the court of common pleas of the said city and county, and such suit may be brought in the said court, or in the superior court of law of the said city and county. (36) 1 R. L. p. 422, § 6. Ib. TITLE 6. Marshal of c.ties. ib. REVISED STATUTES OF [PART III. $ 25. The said courts shall proceed in such suits, in the manner herein directed, in respect to suits on sheriff's bonds; and all the powers of the supreme court in relation to such bonds, and the proceedings, judgment and executions therein, are hereby conferred on the said courts, in suits upon the official bond of the said clerk. $ 26. Proceedings for the prosecution of any official bond given by any marshal of any city, may be had in the manner herein directed in respect to official bonds of sheriffs, except that applications for that purpose may be made to the mayor's court of the city, and such suit may be brought in the said court. $27. The said court shall proceed in such suit, in the manner herein directed in respect to suits on sheriff's bonds; and all the pow ers of the supreme court in relation to such bonds, and the proceedings, judgments and executions therein, are hereby conferred upon the said court in suits upon the official bond of such marshal. What actions aay be brought. How prose cuted. TITLE VI. OF ACTIONS FOR PENALTIES AND FORFEITURES; AND PROVISIONS ART. 1. Of actions for penalties and forfeitures, ART. 2.-Provisions respecting the collection and remission of fines imposed by courts, and of forfeited recognizances. ARTICLE FIRST. Of Actions for Penalties and Forfeitures. SEC. 1. Actions that may be brought for forfeitures, &c. 2. To be prosecuted like personal actions. 3. Such actions by district attorney, public officers, &o. 10. Mode of declaring for penalty, &c. in action of debt. 13. General issue may be pleaded: evidence under it. § 1. When a pecuniary penalty or forfeiture is specially granted by law to any person injured or aggrieved by any act or omission of another, the same may be sued for and recovered in an action of debt, or in an action of assumpsit; and if it be a forfeiture of any property, it may be sued for and recovered in an action of trover, or other appropriate action. $2. Every such action shall be prosecuted and conducted in the same manner as other personal actions in all respects, except as herein otherwise, provided; and shall be subject to all the provisions of |