
    Jesse Conway vs. John Jett.
    The debtor does not release the lien of the creditor upon property levied upon, by obtaining an injunction, so as to subject it to other executions, unless the fiat of the judge order security to be given, and such security is given by the debtor upon obtaining the injunction.
    A failure by a public officer to give security to refund when an injunction is dissolved, and to proceed with the execution, is not such negligence as discharges the lien of the execution.
    A sheriff is not liable for negligence in not selling property, the sale of which has been enjoined, upon a dissolution of the injunction, unless security is given to refund the proceeds.
    In such a case, he retains the property in his hands as trustee, until the controversy is ended; and if, during the time he so holds it, another execution issues- against the same debtor, and is placed in his hands, to which he returns “no property found,” he is not liable for a false return, unless the property was sufficient to pay both.
    On the fourth day of September, 1891, a writ of fieri facias came to the hands of John Jett, sheriff of White county, in favor of Eli Sims, trustee of said county, commanding him to make of the goods, &c. • of Thomas Taylor and others, the sum of $,‘1527 50. This fi. fa. was levied on the 6th September, on the following slaves, as the property of Thomas Taylor, to wit: a negro man, Yol, a negro woman, Esther, a girl, Dorcas, a boy, Martin, a boy, Peter, and a child, Louisa. Before the sale, a bill was filed against Jett, Sims and Taylor, by James P. and Mary Taylor, settingup a claim to the negroes, and praying that the sale be enjoined. A fiat for an injunction was awarded, that the sheriff be restrained from selling the negroes, but to keep them in his possession. No writ of injunction issued; but the counsel for the parties agreed, that the injunction be dissolved, on condition that Jett should give security in the penalty of two thousand dollars, for the forthcoming of the negroes, to abide the decree of the court. The court made an order dissolving the injunction, and allowing Sims to proceed with his execution, on condition that he give a bond and security to refund, should the court so decree. The cause came on for a final hearing at the June term, 1825, of the chancery court at M’Minnville, when the bill was dismissed.
    At the July term, 1825, of the county court of White, a venditioni exponas was ordered, and the negroes were soon thereafter sold to satisfy Sims’ execution. On the 23d day of March, 1825, several executions, at the suit of the plaintiff, against Thomas Taylor, came to the hands of Jett, the sheriff, upon all of which he returned “no property found.” This suit is brought, alleging that Jett, the sheriff, made a false return; and the right of the plaintiff to recover depends on the question, whether the before-mentioned negroes were liable to the satisfaction of the plaintiff’s executions, as the property of Thomas Taylor.
    
      G. W. Gibbs, for plaintiff in error.
    1. It is insisted that the filing of the bill without an injunction issued and served upon the sheriff, or security given, did hinder him from selling the property, and the delay was without lawful excuse, and is an abandonment of the levy, where subsequent judgment creditors are concerned. See Peck’s Rep. 30: Peak’s N. P. Cases, 65: 4 East, 522. '
    2. If there had been a regular injunction, this was dissolved at Dec. 1822. The agreement between the sheriff and judgment creditors on one side, and the complainants, by their counsel, that the negroes should not be sold until final trial, cannot hold the property covered from other creditors, for upwards of two years.
    3. When execution is levied upon personal property, and injunction issued, the levy is vacated, and new executions must issue. An order of sale upon the old levy, is a mere nullity. Perkins and Overton, Martin and Yerger’s Rep. 367.
    
      Samuel Turney, for the defendant in error.
    The delay of tbe sheriff to sell this property, was by authority of law; the bill of injunction, though no security was given for the debt, operated as a bill of interpleader, the sheriff being a party thereto, which was proper to be filed. 4 Hen. and Mun. 506.
    An injunction does not destroy, but only suspends the lien, until the rights of the parties are ascertained, or at least until security is given for the debt. Martin and Yerger, 367.
    The sheriff having levied Sims’ execution upon the negroes, became liable for the value of the ne-groes, if they belonged to the debtor; if there was a dispute about the title, and he was a party, he was obliged to wait until indemnified, or the title settled. It would be absurd to say, if he proceeded and sold he would be liable to the proper owner, and if he waited he must pay Sims for losing the lien which he had obtained by the levy, there being the condition of debtor and creditor under Sims’ execution, and creditors under other executions can be in no better condition than the debtor himself, as to title. 1 Mad. Ch. 142. 4 Com-Dig. 124. 2 Bac. Abr. 355, 367.
   Green, J.

delivered the opinion of the court.

The lien a plaintiff acquires by the levy of his execution, may be lost, if he be guilty of gross laches in not having the property sold in reasonable time, or if he release the property and give time to the defendant; and it may be that when the execution is enjoined and security taken for the debt, the property levied on would be released. In the two first mentioned cases, it would be unreasonable to say that a party should still retain his lien, and thus exclude all other execution creditors from having an opportunity of making their demands. In the last case, it has been said, that because the property is released and returned to the debtor, and the creditor has security for his debt in the injunction bond, that, therefore,- the property which had been levied on becomes the debtor’s again, and liable to other execution creditors. There is much reason for this conclusion, because, by our practice, the injunction bond is taken in lieu of the deposite of the money with the master, as is the practice in England; and it is made the duty of the clerk upon the dissolution of an injunction, to enter up judgment on the .bond against the principal debtor and his securities. Were it not for the security the law has thus provided for the creditor, whose execution may be enjoined, it would be extremely unreasonable that he should lose his lien on account of an injunction, when he was guilty of no fault or negligence himself. Were the law so, a debtor might at any time give precedence to a younger execution of a favorite creditor, by enjoining a sale under the elder one. In the case before the court, although an injunction was ordered, no security was given, or required by the fiat of the judge. He directed, that the sheriff retain possession of the negroes, subject to the further order of the court. As, therefore, the removal of the lien by injunction, in ordinary cases, is founded on the security for the debt, contained in the injunction bond, and as in this case no bond was taken, or required, the principle can have no application here.

We will next consider whether Sims, the trustee, was guilty of such negligence as to cause a forfeiture of his lien. It is said, the injunction was dissolved, and he might and ought to have proceeded with his execution. It is true, the injunction was dissolved; but it was upon condition, that Sims would give bond and security to refund, in case the complainants should obtain a decree. Sims, the execution creditor, was a public officer, the trustee of White county. The money, when collected, belonged to the treasury of White county, and not to him individually. Was it reasonable to suppose that he would give the security required, and thus become individually bound to refund $1500, in order to get the privilege of collecting that sum by the sale of disputed property, the collection of which did not interest him more than any other citizen of White county? Surely not. He cannot be chargeable therefore with negligence; for he could not proceed but by incurring a responsibility -which no man in his senses would have incurred. We do not think, therefore, that Sims has been guilty of any fault or negligence; for the bill was not dismissed until June term of the chancery court, 1825; and we find him in July, hastening the sale of the property by a venditioni ex-ponas. The sheriff, Jett, cannot be chargeable with negligence, for the same reasons that excuse Sims. The right to the property was disputed. A bill was filed by the adverse claimants, and he was made a party. If he had sold, after the dissolution of the injunction, it would have been at his peril. He had the ne-groes in his possession, and was liable to the true owners. It was better for all parties, that the sale should be suspended. Indeed, it was the only prudent course to pursue. There is no ground, therefore, to say, that Sims’ lien was in any wise lost. His execution having taken the property, the return of the sheriff in the plaintiff’s executions was warranted by the truth. The case relied on, in 4 East, 522, was a case of gross negligence, to proceed with the sequestration for eighteen months, there being no impediment in the way, nor excuse wherefore the delay had taken place. That is not this case. Here there was no negligence, no delay, other than that which was warranted under the circumstances by law.

Upon the question made in relation to the evidence, it is unnecessary to give an opinion. The point heretofore discussed, settles the rights of the parties; and although slight irregularities in the admission of testimony may have occurred, yet,- as the court see that a new trial could do the plaintiff in error no good, we affirm the judgment.

Judgment affirmed.  