By the Court.
delivering the opinion. '
Upon a careful examination of the whole record, we feel constrained to award a new (rial in this case. Without considering the alleged errors separately, we prefer to submit our views generally, upon the law of the case, as applied to the rights of the parties.
*115Assuming that the proof shows, that the negro George Avas not delivered on the day of sale, within the hours of sale, but that he was subsequently, andón the evening of the same day, placed in the hands of the Sheriff; and upon consultation with the attorneys of the creditors, it was agreed, that the sale should be postponed; and that by direction of Col. Towns, one of the counsel, the negro was allowed to remain in the possession of the defendants in execution, with the understanding that they should, Avithin a Aveek, give a new forthcomiug'bond, which they never did, but the negro was never sold, but run off to Texas — how stands the case?
The first bond v/as forfeited by the failure to deliver on the day of sale. Now, what took place afterwards was not necessarily a discharge of the bond. Expenses might have been incurred for the re-advertising, &c. The negro might have depreciated in value, so as not to have brought the amount' of the fi. fa. on the next sale day. In that event, the surrender of the negro, and the postponement of the sale? would only, go in mitigation of damages, and not in absolute discharge of the first bond.
There was error then in the holding, that the postponement, which Avas forced upon the parties, by reason of the first, failure, would prevent any recovery upon the bond.
As to the right of the Sheriff to maintain this action, for the use of the three parties for whose benefit he sues, upon the doctrine of substitution, we think the action was Avell brought in behalf of Toliver Jones and Edward Giddens, the securities of the Sheriff, rvho were compelled to pay the execution of Ezekiel B. Smith. True, the Sheriff has paid nothing, and by reason of his insolvency — which the Court should have allowed to be shown— nothing could be collected out of him. But his securities have been forced to pay this liability for him. They are entitled, therefore, to be substituted to all the rights of their principal; and amongst the rest, that of suing on the forthcoming bond.
It is said on the argument, that the Court did not intend *116to exclude them; and counsel for defendants in error, do not seriously insist that they should be excluded. All we have to say is, that the judgment of the Court applied to the whole action. And the opinion of his Honor, accompanying the bill of exceptions, shows that we do not misinterpret his judgment.
But how is it, as to the Turner and Stallings and Perkins case ? Their ft. fus were levied on the negro George also. And to prevent circuity, instead of collecting their respective demands out of the Sheriff’s securities, as did Smith, they propose to go directly upon the forthcoming bond. And it may be that, in principle, it is the same thing; and that, in equity, such a procedure would be sanctioned. But apart from the technical objection, that neither the Sheriff nor his securities, have any thing to pay on these claims, there are substantial reasons upon the face of the record, why this should not be done. To get the benefit of the testimony of James K. Giddens upon the trial of this case, he has been released by the creditors. Pie then has been discharged. Can his securities upon his bond be made responsible? It would seem not. And if no recovery can be had against the Sheriff or his securities, no action over can be had upon the forthcoming bond.
There is another stubborn fact disclosed upon the face of this record, which has not received that attention which its importance apparently deserves. After the negro George was again taken into custody by the Sheriff, it was agreed by one of the counsel for the creditors, or some of them, in writing, that he should be permitted to go into the possession of the defendants,the Evanses; and they were to bring the Sheriff another bond, for the delivery of the boy, that day week— that is, a week from the first Tuesday in July, 1844. Before that time arrived, the negro was run off to Texas, no bond was executed, and the Sheriff was unable to get hold of the property.
*117Who is to suffer for this default ? Not the Sheriff; for he was expressly authorized by the attorney, to suffer the defendant to take him immediately — trusting to them to give the bond afterwards. This being so, no action can be maintained againt the Sheriff’s securities, for the value of the negro or any part thereof, by Turner, or by Stallings and Persons. And in the face of this fact, we are unable to see how any judgment was obtained in favor of Smith against the Sheriff’s securities. The defendants are entitled to avail themselves of this defence, against even the suit at the instance of the security upon the Smith debt. They should have pleaded it to that action.
If the testimony of Col. Levi B. Smith was admissible to prove that he urged the Sheriff to sell George on the day of sale, we are clear that the reply of the Sheriff should have been let in, in explanation ofhis conduct.
Judgment reversed.
Benning J. — I dissent from the judgment in this case.