I think the question presented by the bill of exceptions, has been settled by the adjudications of this court. In the case of Robertson v. Beavers, 3 Porter, 386, it is said, “ if the sheriff had doubts as to the right of the property, he might have required bond of indemnity from the *661plaintiff, or his agent, but not having done that, but having omitted to levy, he was bound to show due diligence in endeavoring to collect the money. And in the case of Minter v. Bigelow & Co. 9 Porter, 482, it is said, that “ if a sheriff return an execution no property, it is incumbent on the plaintiff to show, that the return is presumptively'false. This may be done, by showing that the defendant was in possession of property, and if he is not the owner of it, or if it is not subject to the payment of the defendant’s debts, it will devolve on the sheriff .to show that such was its condition. But he will however be relieved from this burthen, if he has used the precaution, whilst the execution was in his hands, to require a bond of indemnity from the plaintiff, who has declined to give it. So also, in Ogden, Wadlingfon & Co. v. Powell, 7 Ala. 243, it is said, “ that to justify a sheriff id releasing a levy already made, or in refusing to levy because the plaintiff in execution would not execute a. bond of indemnity, he must show that a real doubt existed as to the title of the property. I admit, that this is a liberal construction of the act of 1807, (Clay’s Dig. 207,) the language of whióh, is, “if any sheriff shall levy an execution on property, and a doubt shall arise whether the right of the property is in the debtor, the sheriff may apply to the plaintiff, his agent, Or attorney, for bond and security, for his indemninification for the sale of the property,” &c. Yet as this court has' construed this act, as giving the sheriff the right before the levy is made, to demand indemnity, if real doubts as to the title of the property exist, we think it better to rely on the principle of stare decisis, than to adopt a more rigid rule of construction, especially as the practice has prevailed heretofore, of giving indemnity to the sheriff in cases of doubt, if required by him, before the levy is made. We therefore must hold, that if a sheriff, having real doubts, whether the property in the defendant’s possession be subject to the execution; applies to the plaintiff for indemnity before levy, who refuses to give any, he may, for such refusal, return-the execution “ no property.”
Under this view, there is no error in the record, and the judgment must be affirmed.