The opinion of the court was delivered by

The plaintiff claimed, in this action, to recover the value of the two horses attached. The defendant contended that the two horses, received by Clark, were received in lieu of those attached. If they were so received, by the consent of the plaintiff, it was, undoubtedly, a good defence in this action. The charge of the court, on this point, was right, and the finding of the jury established the fact that they were not so received.

The question then is, what effect the receipt of the two horses, by Clark of Sowles, the receiptor, and the subsequent sale on the executions, should have on the damages for which this defendant was liable ? The charge of the court, upon this point, placed the delivery of this property on the same ground as though a payment of so much had been made by Williams, the debtor, on the executions, and gave it no further effect. We think it should have a further effect on the damages to which the defendant was liable in this action. The defendant, having received the horses attached of the plaintiff, and executed a receipt therefor, it was his duty to return the same horses, or pay the value of them. If he substituted other property, either his own or Williams’, which was sold on the executions, it should have operated to extinguish his liability, pro tanto, whether received by Clark, the officer, under any such agreement, or not. He might have paid a sum of money, directing it to be applied in part satisfaction of his liability, and, if received at all, it would have had that effect, whether Clark consented to the application or not. The jury should have been instructed, that, although the defendant was liable for the whole value of the property attached, yet, if he substited other property, instead of that, which was sold and applied on the executions, whatever sum the property sold for should be applied directly in reducing the amount for which he was liable on his receipt.

The judgment of the county court, is, therefore, reversed.