
    Pleasants & Co. v. Lewis.
    October Term, 1794.
    Forthcoming Bonds — Partial Delivery of (roods Effect. — A partial delivery of the goods mcn-tioned in the condition of a forthcoming- bond, is not a performance, and the penalty "becomes forfeited. But if the Sheriff secure and sell what is so delivered, the amount must be credited to the obligor.
    This was an appeal from a judgment of the District Court of Charlottesville, overruling a motion made by the appellants, upon a bond given by the appellee, upon the service of *an execution, conditioned for the delivery of 1000 bushels of wheat, at the day, and at the time of sale appointed by the sheriff. The facts stated in a bill of exceptions are, that on the day of sale, the obligor delivered a parcel of wheat to the sheriff, the quantity at that time unknown, but which the defendant at the trial acknowledged to be about 500 bushels, which the sheriff received, without excepting to the quantity, and proceeded to sell the same, but could not for the want of buyers. The court over-ruled the motion, from which this appeal was prayed.
    
      
      Forthcoming Bonds — Partial Delivery of Properly Hentioned in Condition. — The principal case is cited in Cole v. Fenwick. Gilmer 135, to the point, that where a part of the property is delivered, the sheriff is bound to receive the same, and to proceed therewith, in the same manner, as if the whole had been delivered; and that the avails thereof, on a sale made by him, shall be applied, in whole or in part discharge of the execution, as the case may be: and if the latter, that the award of execution in the bond, should be limited to the balance then appearing due on the execution. It is also cited in note to same case; Wallace v. McCarty. 8 W. Va. 198; Adler v. Green, 18 W. Va. 206. See monographic note on “Statutory Bonds ” appended to Goolsby v. Strother 21 Gratt. 107.
    
   The PRESIDENT.

The condition of the bond was not performed by the partial delivery stated in the record, and of course the penalty became forfeited.

The judgment must therefore be reversed, and the cause remitted to the District Court, to proceed to judgment on the bond, allowing credit for any money, which may be proved to have been paid to the appellants, or to have been raised by the sale of any part of the wheat delivered.

Judgment reversed.  