dissenting.
Where a mandamus nisi was prayed for by a plaintiff in execution to compel a sheriff to levy a fi. fa., and it was stated in the petition that the petitioner was the holder of a fi. fa. founded on a debt contracted before the adoption of the Constitution of 1868, that he had directed the sheriff to levy on a certain parcel of land as the property of the defendant, that the sheriff had refused, giving as his reason that the land had been set apart, under the Constitution of 1868, as a homestead for the family of the defendant, that the defendant had no other property, and that the land set apart contained two hundred acres, it was error in the Court to refuse to grant the mandamus nisi.
*354It was the duty of the sheriff to make the levy. If he would apparently be a trespasser he had a right to ask a bond of the indemnity from the plaintiff'. But it is the right of tho plaintiff to have the levy made, that the questions between the parties may be settled by litigation between themselves, and not between the plaintiff and the sheriff, who has no right to make the issue.
The Court should have granted the writ on condition that the plaintiff give bond to indemnify the sheriff in ease the levy should be found to be a trespass, and he be held responsible for damages.