1. We think it would be a harsh judgment against the sheriff to hold him liable to a rule absolute in this case. He has acted in good faith and he has done no harm, except to compel by his conduct the plaintiff to ask the direction of the Court in this a very doubtful matter. He is made a trespasser if he levies upon a homestead. It is admitted that there is a homestead in this case; but it is contended that the homestead is exempt for taxes, and that this fi. fa. is for taxes. Because the sheriff refused to decide so nice a question as this it seems to us that it would be very harsh to hold him liable.
We are not, ourselves, prepared to say that this property is liable. It is an open question, and one that the parties have a right to make. The fi. fa. is for the default of a tax collector in settling with the Comptroller General, and it is going pretty far to say that this is taxes, in the sense of the exception to the Constitution. We do not, however, decide this question. We simply say that, in our judgment, in so doubtful a case, the sheriff, in the case of real estate, may well await the order and direction of the Court.
2. We think the Court should direct the levy to be made. Let the parties claim the property, and make the question.
Lochrane, Chief Justice, concurred, but furnished no opinion.