I concur in the judgment.
A re-hearing having been prayed for at this term, Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring.
This case was decided at the present term, and a petition filed by plaintiff for a re-hearing. The importance of the case renders it proper that some additional reasons should be given.
The learned counsel for the plaintiff, in their petition for a rehearing, have referred us to the case of Watmaugh v. Francis, 7 Penn. R., 206, as an authority against the position we have taken. The facts of that case were substantially and concisely these: Baldwin had a prior and Francis a subsequent execution against Morris. Both executions were levied upon certain property, which was claimed by Thompson. Baldwin did not indemnify the sheriff, but Francis did. The sheriff proceeded and sold the property under both executions, and paid over the entire proceeds to Baldwin. Thompson sued the sheriff and obtained judgment against him, for the value of the property, and then the sheriff sued Francis upon his bond, and it was held by the Supreme Court of Pennsylvania, that the sheriff could recover.
The statutes of that State contain a provision regarding indemnity-bonds given to sheriffs. Laws of Pennsylvania, fróm 1700 to 1849, by Dunlap. But, according to the practice in that State, when property attached, or levied upon, by an officer, is *257claimed by a third party, the Court, upon application, will enlarge the time for making the return. In the opinion of the Court, Rogers, J., holds this language:
“ As he is bound to execute the writ at his peril, where there is reasonable doubt whether the goods are liable to be taken on the ft. fa., he may apply to the Court from which the writ issues, and in a proper case, the Court will enlarge the time for making the return to the writ until the right he tried, or a sufficient indemnity he given. But when he has received, or tendered an indemnity, it is his duty to proceed, on the pain of being attached or fixed for the debt.”
From this, it seems clear, that where indemnity is offered the officer .must proceed, but when it is not offered, he cannot relinquish the levy except at his peril, but may apply to the Court to enlarge the time for making the return, “until the right he tried, or until sufficient indemnity he given.”
In reference to another point, the same learned Judge proceeds to say :
“ Under the circumstances in which he was placed, what was the sheriff to do ? On the tender of indemnity, he was bound to execute the writ; so say all the authorities. It is also clear, that the Court will not stay the proceedings on the allegation, simply, that he has another execution in his hands against which he is not indemnified. The answer to such an allegation would be, that is nothing to you—you have a sufficient bond of indemnity, and it matters not by whom it is given, whether by the first or second execution-creditor. You arc not entitled to two indemnities. You cannot execute one writ without executing the other; the levy and sale on one, is the levy and sale on both.”
It will be seen upon a careful examination of the able opinion of Mr. Justice Rogers, that the decision was mainly predicated upon the grounds indicated in the extracts given. As the sheriff could not relinquish the levy, except at his peril, there was no necessity for Francis to indemnify. If Francis, as well as Baldwin, had refused to indemnify the sheriff, then the latter would have applied to the Court, and then the right to the property would have been tried, and the same question finally settled, that was afterwards settled in the case of Thompson against the sheriff. Under such a practice, no risk was necessary on the part of either execution-creditor. But hs Francis chose voluntarily to incur the risk, when unnecessary, he was held to incur it for the other execution, as well as for his own; and the sheriff was only allowed to take one indemnity; and as he was allowed to take but one bond, he was allowed to recover on that. And the whole theory of that opinion substantially rests upon these grounds:
1. That the creditors were not bound to incur any risk.
*2582. That if they did so voluntarily, the sheriff could take hut one bond of indemnity.
3. That if the bond was given, the sheriff must proceed upon all the executions.
But the provisions of the one hundred and thirty-first and two hundred and eighteenth sections of our Practice Act, have most materially changed the rule upon this subject. Under our system, if the property be claimed by a third person, the sheriff may protect himself by a trial before a jury of six ; and if the verdict be in favor of the claimant, the sheriff may relinquish the levy unless indemnified. Here the creditor is either compelled to abide the verdict of a sheriff’s jury, or he must give the indemnity. He cannot, as in Pennsylvania, have a regular and final trial before a competent Court, without risk, but he must either submit to the decision of six men, unaided by the instructions of a competent Court, or lose his debt. And the hardship of the creditor would be increased beyond endurance, if we hold that the sheriff could take but one indemnity bond, and that such indemnity, when given, either "by the prior or subsequent creditor, would enure to the benefit of all the writs that might come into the hands of the officer, and be levied upon the same prop- " erty. For, as I understand the principle settled in that case, if Baldwin had given the indemnity instead of Francis, then the sheriff would have been still competent to proceed under both executions; and if the proceeds had been more than sufficient to satisfy Baldwin’s execution, then the surplus would have been applied to the execution of Francis. And if there had been several other subsequent executions, and the property had brought enough to have satisfied them, in whole or in part, the result would have been the same. The indemnifying creditor, whether first, intermediate, or last, took all the responsibility, and all the others shared the benefit of his indemnity in the order of the priority of their several executions.
But it cannot be so under our statute. If Gilson had refused to indemnify, and Dallas had done so, then the sheriff should have released the levy of Gilson), and Dallas would have shared all the responsibility and all the benefit.
And the game rule would apply to any subsequent creditor who refused to indemnify. The object of the statute is to make responsibility and benefit go together. And this being true, it' is apprehended that there can be no other theory but the one we have adopted, that will legitimately carry out this intent of the statute, and do equal and exact justice to all parties.
It is only upon the ground that our statute makes responsibility and benefit go together, that Gorham had the right to take separate bonds, (each for the full value of the property,) both from Gilson and Dallas. If the protection of the sheriff had been the sole object, without regard to the rights of each *259creditors, as between themselves, then only one bond could have been taken. l
The protection of the sheriff would have been amply secured by one, and there could have been no necessity for more. But as each creditor was compelled to indemnify, or relinquish his levy, the sheriff had the right to take separate bonds from each. And the object of these separate bonds was to protect the rights of the indemnitors, as between themselves. And while it was the object of the statute to give tbe sheriff protection, it was also its object to give creditors a fair opportunity to assert their rights, without placing them in such a position as to force them, either to lose their debts, or to incur extraordinary risks, entirely disproportionate to the necessities of the case.
If the theory we have adopted be fairly carried out, and practically applied, it will be found to afford the sheriff ample protection, and yet, at the same time, not do injustice to creditors. It will not place the creditor in such a position that he must choose between two severe alternatives.
It is impossible, within the limits of an opinion, to anticipate and answer all the objections and misconceptions of counsel. But I apprehend that, upon a careful examination of the former opinion in this case, it will be found perfectly consistent with itself, and that no such consequences legitimately flow from it, as has been supposed by counsel. The four cases mentioned are all based upon the same principle, and are entirely consistent with each other. The principles laid down in these four points, it is conceived, will include "every case that can arise. The language of the fourth point, may be made more full, by saying “ defeated or dismissed,” in place of “ defeated by Meiggs.”
In the opinion, we said that “ in detaining the vessel under each attachment, the sheriff acted as-the agent of both Gilson and Dallas, but his agency for Glison was primary, while it was secondary for Dallas. It was conditional as to both.”
What was meant by the expressions primary and secondary, would seem to be sufficiently explained in the opinion itself.
As to the sentence, “it was conditional as to both.” Where an officer attaches the property of the defendant, he does not act as the agent of the plaintiff, but as the officer of the law. But when he attaches property that does not belong to the defendant, he goes beyond the command of the writ, and acts as the agent of the party at whose instance he does the act. As it was unknown whether the Underwriter was the property of Meiggs, or not, the sheriff's agency at that time was but conditional, and depended upon the result of subsequent proceedings. If it turned out to be the property of Davidson, then the sheriff acted as the agent of Gilson and Dallas; if otherwise, he detained the property as the officer of the law.
*260After the most careful consideration of the subject, I can see no sufficient reason-for changing the former opinion.
Petition denied.