1. On the first instruction, given in this cause to the jury, our opinion is the same as was that of the Circuit Court. It is not material to the sheriff or his sureties to inquire, whether both, or but one of the defendants in. execution yet remained the debtor of the plaintiff. This is not a suit where the attempt is made to recover from the sheriff a debt for which the defendants in execution have been discharged ; therefore we lay that entirely out of view. So far as the sheriff is concerned, the agreement between the plaintiff and one of the defendants in execution, and his discharge, that is entirely personal.
3. The other charges involve but one general principle, which is, whether a sheriff is liable upon this suggestion, when he is prepared to show that the defendants in execution had no property out of which the money could rightfully be made. This question was, to some extent, considered in Leavitt v. Smith, decided at the last term. Our opinion then intimated, was, that the sheriff could excuse himself, by showing that the defendant in execution had no property in the goods levied upon. The reason for this is, that the sheriff, by making a levy on the goods of a third person, becomes a trespasser, and being so, the law does not impose on him the duty of holding the goods, after he has ascertained their true ownership. The statutes in relation to indemnity bonds, were enacted to relieve sheriffs from their common law liabilities, to the extent which the acts provide for. It is possible, too, that their effect may be, to cast on the sheriff, who refuses to levy after a bond is tendered, the onus of showing that the debtor was not the owner. Otherwise they do not seem to either impose additional duties, or affect his common law liabilities.
3. When a claim is interposed under the statute, as it may be when the goods of a stranger are levied on, the sheriff has nothing further to do with the property claimed; nor has the claimant any redress against him for the supposed trespass, in making a levy. The plaintiff in execution immediately, and by force of those proceedings, becomes an actor against the claimant, and may take the necessary steps, by rule or otherwise, to compel the sheriff to return the necessary papers.
4. Nor is it unlikely, if a loss results, either by being cast in costs or otherwise, from the neglect to retain the affidavit of *706claim, and the bond executed by the claimant, that the sheriff will be liable in an action on the case; but the taking a defective bond, as was the case here, does not, either by itself, or coupled with the omission to return it, make the sheriff liable, per se, for the value of the property levied on. Prima facie, he would be charged on account of his levy; but he could discharge himself, as in any other case of tortious levy, by showing that the defendant in execution had no property in the goods, and that the party from whom they were taken had been reinvested with the possession. Bristol v. Wilsmore, 1 B. & C. 514, is conclusive to show that the owner of goods may retake them from the sheriff, even after a levy at the suit of another. This being the law, it would act most oppressively if such an officer could not defend himself, by proof of the same facts which would defeat his action against the true owner, subsequently taking them from the sheriff; and which would reader the sheriff liable, if sued in the first instance.
The judgment must be reversed, and the cause remanded.