
    Smith v. Watkins, sheriff.
    No. 3420.
    July 21, 1923.
    Petition for mandamus. Before Judge Munro. Talbot superior court. September 7, 1922.
    Mrs. T. F. Smith filed mandamus proceedings to require J. W. Watkins, sheriff of Talbot County, to deliver to her eight bales of cotton. Buie nisi was issued August 19, 1922. The following facts appear from the petition: Mrs. Smith brought an action of trover against W. J. Thornton, to recover possession of certain property described as follows: “Ten (10) bales of lint-cotton
    put up and bound in jute bagging or the bagging now commonly used for the purpose of putting around baled cotton, and said cotton is bound with iron ties; all of the value of $800.00.” To the petition Mrs. Smith attached an affidavit for the .purpose of requiring the defendant to give bail. The petition was filed on June 5) 1922. On June 6, the sheriff made the following entry: “ I have this day served the defendant, W. J. Thornton, personally with a copy of the within petition and process, and seized eight bales of cotton as described in the within petition of affiant -and in possession of defendant.” Thornton declined to execute the statutory bond and to take possession of the cotton; and on July 31, 1922, Mrs. Smith executed the bond provided by law and tendered the same to the sheriff, with the demand that the cotton be delivered to her. She alleged that' the sheriff recognized the security as being good and solvent, but arbitrarily refused to accept the bond and deliver the cotton to petitioner. On September 6, 1922, the sheriff made the following entry on the petition: “ The sheriff hereby amends his return by saying the cotton seized cannot be identified and the sheriff can’t tell what cotton or whose cotton it [is].” On the hearing, September 7, 1922, the plaintiff traversed the return of the sheriff, and insisted that the cotton seized was the identical cotton described in plaintiff’s petition and affidavit, and that the entry of the respondent on the petition shows that he did seize this particular cotton, and he cannot attack his return and show that it is not true; that the entry of respondent shows that he did seize, on June 6, 1922, eight bales of the identical cotton described in plaintiff’s petition and affidavit, and which is shown by entry of seizure. The defendant admitted seizure of cotton, and for further answer said “the eight bales of cotton referred to in the jiroceecling were simultaneously seized under several trover proceedings on June 6, 1922, against W. J. Thornton [naming the parties plaintiff]; that all of these plaintiffs claimed the eight bales of cotton, but none of them nor this respondent coiild identify the cotton, because it had no marks, tags, number, or anything else upon it by which identification was possible.” Defendant further answered that for the same reason he had refused to accept bond of the other claimants, and that it was his duty to protect all claimants by. holding the cotton; and he prayed the direction of the court as to disposition of the cotton. The court rendered a judgment refusing a mandamus absolute,, to which the plaintiff excepted.
   Russell, C. J.

Under the pleadings and the evidence the court did not err in refusing to grant a mandamus absolute..

Judgment affirmed.

All the Justices concur, except Atkinson and Mines, JJ., dissenting.

J. J. Bull & Son, for plaintiff.  