This was an action of debt, on a penal bond, given by the defendants, to the plaintiff in error. The defendants below craved •oyer of the bond and condition, which are set out, in the record; and upon oyer, demurred: judgment was rendered in favor of the demurrer, by the Circuit Court of Shelby County — and the case is brought here, by writ of error. / - ■
The penal part of the bond, is in the usual form: the condition recites, That Thomas H. Brasher, had *380Commenced an action against the plaintiff in error,, in the Circuit Court of Shelby County, for a certain negro girl, named Eliza; and that the sheriff of said County having said girl in possession, by virtue of said action, and the said Thomas H. Brasher, being desirous to give bond and security, in pursuance of the statute, in such case made and provided, that.he will, in case he fails in his said suit, pay and satisfy unto the said Rimes' B. Reed, all such costs and damages, as he may sustain, in case he, (said Brasher,) shall fail in said action intbat case ; then this ■.obligation to be void — else, to remain in full force and effect ”
The statute, in cases of detinue, authorises the plaintiffs, upon making oath, to the property sued for, and upon giving bond árid security, to be approved by the clerk, conditioned to pay the defendant all such costs and damages as-the defendant may sustain, in case the plaintiff fail: to require’the clerk to direct the sheriff to attach and bold the property sued for, subject to other proceedings directed by the statute. . -
It is contended, by the defendants’ counsel, that this bond is void, it not having been taken before the levy by the sheriff; that the legal presumption is, that a proper bond had been taken by the clerk, else the sheriff would not have attached the property.
It is the opinion of the Court, that the bond is good, as a common law bond. The condition by which the defendants are bound, requires no more than the statute does: there is no stipulation contrary to the statute, or inconsistent, with its require ments ; and that, therefore, the defendants are estop-ped from denying their liability, by reason of their, pegligence, in not giving the bond at the proper time,
*381' If, as is suggested in argument, another bond in compliance with the statute, had been given before this, and upon which they are slill liable, that fact, should have been pleaded.
Let the judgment be reversed and the cause re^mantled,