2 Wend. 299 | N.Y. Sup. Ct. | 1829
By the act of April 12th, 1827, the court are authorized to order the bond of the sheriff to be put in suit on the application of any party aggrieved, without requiring that a previous recovery shall have been had against the sheriff. It is left to the discretion of the court whether they will. direct a prosecution on the bond. By the act of 1813, the court were empowered to order the bond of the sheriff to be put in suit for any default or misconduct in his office after a recovery against him. Now such . order may be made anterior to such recovery. It is no longer necessary to shew a recovery; but in the exercise of a sound discretion, the court are of opinion that before directing a prosecution of the bond by which the sureties of the sheriff are to be put to trouble and expense, it should be shewn to the court, which may be done by affidavit, that the sheriff is individually unable to respond in damages for the default or misconduct alleged against him. This not being shewn in this case, the motion is denied.
