W. T. Miles and another v. J. L. Davis and wife, 36 Tex. 690

Ogden, J. Appellees brought suit by an attachment against Hollender, and levied upon personal and real property valued in the aggregate, by the sheriff, at six hundred dollars. Hollender replevied the property, giving appellants as security, in a bond for five hundred and five dollars. Appellees subsequently obtained a judgment against Hollender for the sum of five,hundred and forty-three dollars and ninety-eight cents.

The defendant Hollender, and his sureties, failing to produce the per-' sonal property to satisfy the judgment, the replevin bond was indorsed “ forfeited,” and execution issued against the securities for the full amount of the judgment, interest, and costs, and was levied upon property of appellants to satisfy the same. The appellants paid, upon said execution two hundred and twenty-five dollars, the full value, as they claim, of the personal property seized under the attachment, including interest and cost, and then sued out an injunction against the balance of the execution issued against them.

A demurrer to the petition for an injunction having been sustained by the court, they have appealed. The execution issued against appellants was for a larger sum than that for which they were bound under the replevin bond, and in so far should have been enjoined at least, and we think the petition was not demurable, on that account. The replevy bond was evidently executed under the 12th

Section of the act of the 11th of March, 1818, and was given for the return of the property, or the value thereof, and the sureties were liable on the bond, only for the value of the property not forthcoming on demand. The appraisement made by the sheriff, and indorsed upon the bond, is not in compliance with the law, in that he appraises personal property and realty all together, as though they were but one thing. One object of the law, in requiring the sheriff to indorse on the Writ the value of the property levied upon, is that the defendant may replevy any onti of several articles, should he so desire.

It can hardly be presumed that the original defendant intended to replevy the land, and it would appear to be a great hardship to hold the securities responsible for the value of the land, which could not be removed, and which was accessible to the sheriff, out of which he might make the debt.

It is therefore quite evident that the replevy bond was given for the forthcoming of the personal property, or its value, and that in consequence of the failure of the sheriff to do his duty as the law requires, the appellants should now have the right, under proper proceedings, to prove the real value of the personal property not forthcoming, and for the return of which they became bound, as a proper measure of their responsibility. We think the court erred in sustaining the demurrer to appellant’s petition for an injunction, and the judgment is reversed and the cause remanded. Reversed and remanded.