1. There was no fraud or collusion on the part of Toole, the plaintiff in fi. fa. and defendant in the bill, which induced the withdrawal of the claim, or contributed to the recovery on the damage bond. When Mitchell, the complainant in the bill, signed that bond as surety for the claimant, he put himself in a boat which the claimant was to steer in behalf of both, and if there was injudicious or unskilful navigation he must take the consequences. The judgment on the bond concludes him as well as his principal; if it did not bind both it would bind neither. We can think of nothing that, in the nature of things, could be urged against it by either of them, except fraud, or some patent and incurable defect in the proceedings which constituted the claim case. We have already said there was no fraud.
2. Was the variance of the fi. fa. in respect to interest and cost, from the judgment on which it was founded, such a defect as I have mentioned? Did it render either the judgment or tli&fi.fa. void? We think not. There ought to have been conformity, and the statute requires it. Code, §3636. But the variance was amendable, Id., §§3495, 3494. True, if the objection had been taken, and the amendment needed, or a part of it, was in the fi. fa., the levy would have fallen, for the statute so ordains; but it does not result from this that no legal sale can be made under such &fi. fa. where the objection is not raised and no amendment is called for or attempted. It is the privi*96lege of those interested, to prevent a sale under an imperfect Ji. fa.\ and the claimant, let it be conceded, could have defeated this levy if he had pleased to do so. But he could also overlook the defect, or waive it. It is said he did not know of it, and that they?,/®, was lost, and hence he did not discover it. But why did he try the question of damages without the presence of they?./®., or why did he not examine it when he interposed his claim, or why did he not refer to the execution docket and compare it with the judgment? Had he been diligent he could have had all the knowledge neeessary for his purpose; at least, it does not appear that he could not. The injunction was properly denied. '
