"We do not think the facts set forth by the sheriff in his answer are such as to show that he would have been a trespasser had ho made tire levy, as required by the plaintiff. But we do think that, under all the'circumstances, the judgment of the Court requiring him to pay the debt is unwarrantable. The sheriff evidently acted in good faith. He consulted a respectable attorney, and, as everybody knows, the true construction of the Homestead Law was a question of great doubt. As a matter of course, a sheriff must act at his peril, and if the plaintiff is damaged by his failure to judge rightly, he, the sheriff, must bear the loss. But here was no loss. The land is still there, as subject as it ever was. Had the property been movable, so that it might have been gotten out of the way, we would presume, perhaps, in favor of the judgment that this was the case; but in no event could the plaintiff be injured here except by the delay. In effect this was a proceeding for the benefit of the plaintiff He has no claim except for the damages caused him by the sheriff. By the judgment of the Court he gets his money, the fi. fa. is satisfied, and the sheriff loses the whole. Had it not been apparent that the sheriff acted in good faith we should not feel disposed to interfere. He ought, in case of *523want of good faith, to be punished, and we would not enquire closely into the mode taken by the Court to punish him. Under the judgment, the plaintiffj who is not hurt by the sheriff’s action, gets his whole debt, and the sheriff, who is not really guilty of contempt, but only of mistake, has it to pay and lose it.
We think this is too harsh a proceeding for an honest mistake which has injured no one, and we reverse the judgment.
Brown, C. J., concurred, but furnished no opinion.