
    Saunders & Martin vs. Harris.
    A sheriff or constable is authorized to demand a bond of indemnity from plaintiff in execution before levy, in all cases of disputed tide to property; and if it be not giren, he may return thejji.jh. no property found. He is not bound to take the responsibility of judging* of title in any case, where it is disputed.
    Saunders & Martin, partners, instituted an action on the case against Harris, sheriff of Hardeman county, for a false return. The defendant pleaded not guilty, and the case was submitted to a jury at the May term, 1842, Dunlap, Judge, presiding. Martin & Saunders recovered a judgment against Gallaher, King and others in the Circuit Court of Wayne county; fi. fa. issued, and was placed in the hands of Harris, sheriff of Har-deman, in which county King resided. On the day after the fi. fa. came to the hands of the sheriff, King with the view of securing other creditors, gave them a deed, of trust on his property. Harris addressed them a letter, informing them of his wish to have a bond of indemnity executed before he levied. It does not appear that any bond was executed, and Harris returned the execution “no property found.”
    The Judge charged the jury, that where there was a deed of trust on property of defendant in execution, the sheriff had a right to require a bond of indemnity before levy, whether that deed of trust was executed before the fi. fa. came to his hands or afterwards, unless he had an opportunity to levy the fi. fa. before the deed was made.
    The jury returned a verdict for the defendant. The plaintiffs moved the court for a new trial, which was overruled, and judgment rendered. The plaintiffs appealed.
    
      Barry, for the plaintiffs.
    This is an action on the case, brought against the sheriff for a false return of nulla bona, on an execution in favor of the plaintiffs. Plea; not guilty.
    1. If a sheriff have an opportunity of taking the'defendant or his goods, on a writ directed to him for that purpose, and neglect to do so; he is liable to an action. Watson on Shff. 82, 203: 7 C. D. 286, 545.
    2. An inquisition taken by a sheriff, to try the right of property, is not admissible in evidence, even in mitigation of 'damages. 3 Maulé & Selwyn, 175, Glossop vs. Pole: Watson, 203: 7 C. D. 552.
    3. In an action of this kind, the possession of goods by the defendant in execution, is prima facie evidence of property, to charge the sheriff, on a return of nulla bona. 2 Term Rep. 609, Crossley vs. Arkwright: 7 C. D. 287: 5 Wend. Rep. 309, Wayne vs. Seymour.
    
    4. The sheriff cannot require a bond of indemnity, before he proceeds to levy, unless the title of the property is disputed. Ñic. & Car. 184,' act of 1825, ch. 40, sec. 2: 8 Cowen Rep. 65, Curtis vs. Patterson.
    
    1. The “dispute” must be of such a character as prima facie to involve some substantial claim of right.
    2. Here the sheriff knew the claim set up to be merely colora-ble; as the lien of the execution overreached the deed of trust. This he, as sheriff, was bound to know. .
    5. The sheriff cannotinsist upon the plaintiff showing him goods on which to levy, unless there is reasonable ground for believing that he may mistake and expose himself to an action. 7 Mass. Rep. 123, Bond vs. Ward.
    
    6. A party is not bound to show property unless required by the sheriff. 4 Mass. R. 60, Marshall vs. Hosmer: 4 Bingh. N. C. 197, Dijke vs. Duke: 5 Dow. &Ry. 95, Dean Sf Ghapl. of Hereford vs. McNamara..
    
    7. In an action for false return the sheriff is liable in damages to the whole amount of the execution. 5 Day R. 221. Ark-ley vs. Chester.
    
    
      Miller and Fentress, for the defendant.
   Turley, J.

delivered the opinion of the court.

It appears in this case, that the defendant, the sheriff of Har-deman, refused to levy and sell property under an execution in favor of plaintiff, without indemnity, when the property had been conveyed in trust after the execution came to his hands, but before service. By law the sheriff is entitled to ask indemnity before sale in all cases when there is a dispute as to title, and why? In order that he may not be compelled to taire the responsibility of judging of title, which was fixed upon him by the common law, and which would, with us, be ruinous upon the officers. If not bound to judge in one case of title, surely not in another; if not in a difficult one, not in a plain one. For this would fix the responsibility upon amost uncertain basis, one perfectly intangible and illusory. Affirm the judgment.  