On the first point *560the court have no difficulty in reversing the judgment, being of opinion that the law does not warrant a judgment against an under sheriff for failing to take appearance bail upon mesne process.
As to the other point (which was suggested by the court) we are of opinion, that as the deputy sheriff was in no respect concerned in the merits of the cause, he alone, might obtain a supersedeas.
The enquiry of damages must therefore, be set aside, as to all the defendants, as must the proceedings subsequent to the declaration, and the cause is tobe proceeded in anew upon the sheriff’s return, made upon the writs issued against the two Clai-bornes.