HALL VS M'HENRY, 5 Port. 123

HOPKINS, C. J. This was an action of trespass on the case. The proof upon the trial of the cause was, that'the defendant in error, who was defendant also in the Court below, had before the commencement of the action in this case, levied an execution in favor of John and Margaret Martin, against one Edward Royster and the plaintiff in error, upon two slaves, as the property of Royster. That it was doubtful to whom the slaves belonged, as they were claimed by other persons than Roy-ster; and public opinion was divided on the question, whether Royster or the other claimants owned the property.

The defendant in error, required the plaintiff in the execution, to indemnify him in the mode prescribed by our statute law, for the sale of the slaves, and they refused to do so.

That after the lapse of more than ten days from the time he applied to-the plaintiffs in the execution to indemnify him, he delivered the slaves to Royster, from whose possession he had taken them, when he made the levy of the execution: That the plaintiff in error was the surety of Royster, for the debt for which the execution issued, and the defendant knew he was surety before the levy was made: That after the possession of the slaves was restored to Royster, he ran them from the country: That the plaintiff in error afterward paid eight or nine hundred dollars, on the execution — a sum which was about equal to the value of the slaves, and that while the sheriff had the possession of the slaves, the plaintiff in error, offered to give him a bond for his indemnity, if he would sell.

The sheriff refused to accept a bond from the plaintiff, on the ground that the plaintiffs in execution, were the only persons from whom he could take such a bond.

The material parts of the charge of the Court below, to the jury were, that the sheriff had the right to requite a bond, with securiry for his indemnity, from the plaintiffs in the execution, and if they failed to give him such a bond, within ten days after he required it, lie might deliver the property to the party, from whose possession he had taken it; but the doubt of the sheriff", as to whom the property belonged, which would authorise him to restore the property to the party from whose possession it was taken, upon the failure of the proper party to give a bond oí indemnity, must be founded upon such facts or circumstances, as might well induce the belief, that the right to the property was in another person than the defendant in the execution.

The Court also instructed the jury, that the sheriff was not required to receive a bond from a co-defendant in. the execution, who was a surety only for the debt. The. instructions of the Court were excepted to by the plaintiff.

The course which the defendant, as sheriff, pursued, was the one which the act of eighteen hundred and seven prescribes for sheriffs, in such a case.* The act of eighteen hundred and eleven, which requires sheriffs to levy executions that-issue against principals and sureties, on the property of the principal first, provided the surety makes an affidavit that he is surety, does not affect the act of eighteen hundred and seven, and would have no effect in favor of the plaintiff, if he had made such an affidavit as the act prescribes.

Although such an affidavit may be made, yet if after a levy, there be a doubt as to the principal defendant’s right to the property, the sheriff is entitled to the benefit of the course provided by the act of eighteen hundred and seven. An affidavit, if made, creates a duty on him, to levy upon the property of the principal first; but after a levy made, under any circumstances, be is not bound to sell, if there be a reasonable doubt as to the right of the defendant in the execution to the property.

The object of the act of eighteen hundred and seven was, to indemnify sheriffs against recoveries or suits, in favor of the right owners or claimants of property, which is sold in virtue of executions. The act gives sheriffs a right to demand of the plaintiffs in executions, bonds on which they may rely for indemnity from Iho conacquencco of acts in selling property,' which may afterward he proved to have been traspasses on the rights of others ; and a Court ought not to decide that such a right may be satisfied, by a bond of any other person, than the plaintiff in the execution.

We think there was no error in the instructions of the Circuit Court. The judgment is affirmed. COLLIER, J. not sitting. Aildn’s Dig. 167.