
    Lewisburg.
    Dickinson for &c. v. Smith & Carter.
    (Absent Brooke, J.)
    In an action on an indemnifying bond, the declaration alleges that the obligors bound themselves to indemnify, &c. In the bond they bind themselves, their heirs, executors and administrators, jointly and severally. This is no variance.
    This was an action on an indemnifying bond brought by Dickinson, high sheriff of Russell county, for the benefit of M'Farlane against Smith <5f Carter. The declaration, after referring to the acts of Assembly authorizing indemnifying bonds to be taken and prescribing the conditions thereof, sets out the executions sued out by Smith, and the levy thereof, and the claim by M'Farlane of the property levied on, and the demand of an indemnifying bond by the sheriff, and then proceeded : The said defendants, John T. Smith and Dale Carter, on the 8th day of April 1845, in the said county, by their certain writing sealed with their seals, and to the Court now here shewn, the date whereof is on the day and year last aforesaid, bound themselves to indemnify the said Thomas Dickinson, high sheriff as aforesaid, and his deputy Isaac Vermillion, against all damages which they might sustain in consequence of the seizure or sale of the property on which the said executions had been levied; and moreover to pay and satisfy to any person or persons claiming title to the said property, all damages such person or persons might sustain in consequence of such seizure' or sale ; and moreover to warrant and defend to the purchaser or purchasers of the said property, such interest or estate therein as should be sold under the said executions, under a penalty of 100 dollars. And the said plaintiff says, &c.
    The defendants appeared and pleaded “ conditions performed,” and “conditions not broken;” on which pleas issues were made up. At the trial of the cause the plaintiff offered in evidence an indemnifying bond, dated the 8th of April 1845, executed by the defendants to the plaintiff as high sheriff of Russell county, in the penalty of 100 dollars, in which they bound themselves, their heirs, executors and administrators, jointly and severally. The recitals of the execution and levy in the condition of the bond were correctly stated in the declaration, as was also the condition itself. The defendant, by his counsel, moved the Court to exclude the bond from the jury, on the ground that it varied from the bond described in the declaration; and the Court sustained the motion, and excluded the bond. Whereupon the plaintiff excepted; and a verdict and judgment being rendered for the defendants, he applied to this Court for a supersedeas, which was granted.
    
      Sheffey, for the appellant.
    
      B. R. Johnston, for the appellees.
   Cabell, P.

delivered the opinion of the Court.

The Court is of opinion, that the indemnifying bond which the plaintiff offered to introduce as evidence to the jury, in support of his declaration, is substantially the same as that described in the declaration ; and that the Court below erred in excluding it from the jury. The judgment is therefore reversed with costs ; and the cause is remanded for a new trial, on which the said bond, if again offered, is to be permitted to go to the jury as evidence in support of the declaration.  