(concurring) — I am satisfied with the result of the decision of the majority, but I would prefer to rest the decision upon the broader ground that an officer may demand indemnity before making a levy, without reference to the statute. There are many cases holding that an officer is bound to serve process at his peril; and if we are to follow the statutes, it seems to me that the necessary implication of § 1888 of the code is that a constable cannot demand indemnity until a claim has been made by a third party.
*591Section 4003, which has been extended by construction, is a part of the Law of 1854, “An act to create and regulate the office of sheriff.” I am unwilling to hold that the statute construed is broad enough to cover the right of a constable. While the rule that an officer must act at his peril, unless protected by statute, is adhered to by many courts, it is very doubtful whether it has, as is frequently suggested in the cases, the sanction of the common law. The contrary rule has been frequently laid down. In Shriver v. Harbaugh, 37 Pa. St. 399, it is said: “It is by common law that the sheriff has a right to indemnity before seizing goods on a jfieri facias.” In Grace v. Mitchell, 31 Wis. 533, 11 Am. Rep. 613, it is said: “The officer must therefore, in a proper case, and if he demands it, be indemnified by the plaintiff or other party in interest.” The rule is generally laid down that, if there be reasonable grounds to doubt his authority, the officer is not obliged to serve process in civil cases at his own peril when the plaintiff is present and may take the responsibility upon himself. Marsh v. Gold, 2 Pick. 285; Marshall v. Hosmer, 4 Mass. 60; Shinn, Attachments, § 203.
Those cases holding that an officer is bound to serve at his peril are usually qualified by an admission that the officer may, if he has a reasonable or substantial doubt as to his right to levy, demand indemnity. While sustained by a great array of authority, this rule and its exception do not seem sound to me; at any rate it is abrogated in this state as to sheriffs and coroners, by statute § 4003. Whether the doubt is reasonable is a question for the jury, and must of necessity be determined after the levy has been refused, and generally in the light of subsequent events. What may appear to be reasonable to the officer might be rejected as unreasonable by the jury. If an execution defendant or a stranger can put the sheriff in position to demand indemnity by saying the property is exempt, or this property is mine, I see no reason for withholding a like protection in the first in*592stance, thus avoiding the very uncertain issue of what is a “reasonable” or “substantial” doubt.
To hold that a constable has a right to demand indemnity is in keeping with the rule laid down by this court in Standley v. Marsh, 1 Wash. 512, 20 Pac. 592, wherein it is said that “a promise will be implied in law from the creditor to the sheriff to hold the latter harmless of the natural results of obeying such directions.” That case was decided without reference to the statute, and it would follow that an officer should have a right to insist that the liability of the execution plaintiff be sustained by proper surety and put upon surer ground than mere implication.