The opinion of the Court was delivered, by

This action was brought by the sheriff, on a bond given for the delivery of property levied on, and the sale of which was suspended for one year, under the Act of 16th July, 1842. The plea admits the execution of the bond, and places the defence upon the ground that the debtor in the execution paid to the plaintiff therein a sum of money, equal in value to the property levied on and not delivered. There is no allegation of performance of the conditions of the bond, or of any payment or satisfaction made or accepted by either of the parties to this action. Nor is it alleged that the payment made by the defendant in the execution, was equal in amount to the debt, interest, and costs which were due, or that it was made or accepted in full satisfaction of the execution, or. in discharge of the bond. And the question is, does a payment of part of the money due upon an execution, discharge a levy previously made ? Justice requires a negative answer to this question. At law, the bond was forfeited upon a failure to perform the conditions. In equity, the debtor in the execution was not entitled to a release of the debt, or of any of the securities for its payment, except upon making full satisfaction. The payment of fart of the judgment was nothing more than a satisfaction, fro tanto, and the lien of the levy remains for the balance. The surety who rests upon the equity of such a part payment is in no better situation than the principal. It is not a material circumstance that the sum paid happened to equal in value the property levied on. It is true that the surety might have discharged himself by payment to the sheriff of the value of the property, because that would be an exact compliance with the conditions of his bond, and would not interfere with the creditor’s right to receive from the principal the balance of the debt, or to collect it by execution. But to take from the creditor a sum honestly paid and received upon a subsisting debt, and apply it in satisfaction of a bond between other persons, and in which other creditors may have an interest, would accord neither with the intention of the parties nor with the equity of the case.

Judgment affirmed.