Opinion on the re-hearing.
Chief Justice Robertson,delivered the opinion of the court.
On re-consideration, we are inclined, (though doubtingly) to the opinion, that we should presume that there was no trial as to the first and third breaches; and that therefore, the judgment should be re*349versed, if f.be pleas to those breaches be insufficient. We have no doubt that these pleas should not bar the action on those breaches. The fact, that bond was not quashed, cannot deprive the plaintiff of his cause of action. If the plaintiff recognized the act of the sheriff, or if his acquiescence could be inferred from his conduct or from the lapse of time, a jury should find against him. But such acquiescence or recognition would not necessarily, or as a deduction of law, result from his failure, merely to quash the bond.
The former mandate must therefore be revoked; and the judgment must be reversed, and the cause remanded, with instructions to sustain the demurrers to the pleas to the first and third breaches of the declaration. If the plaintiff should shew that he has a good cause of action, the peculiar circumstances which shall charac- terise the case must determine the amount of damages.