The question, and only one in the case, is whether the circuit court erred in-refusing to give the instruction asked for by the appellant, and in giving the one asked for by the appellee. The indemnifying bond, upon which the suit is founded recites, that an execution in favor of the principals in said bond, against Sawtell & Brother, had issued from the clerk’s office of the circuit court of Ohio 'county, and been placed in the hands of a deputy of the sheriff of said county, by whom it was levied on certain goods and chattels (enumerated in the bond) as the property of Sawtell & Brother. And it is provided, among other things, that the principals in such bond, and the appellants as their security therein, should pay and satisfy to any person claiming title to said property, all damages which he might sustain in consequence of the seizure or sale thereof.
By the levy of the execution by the sheriff or his deputy, and seizure of the property in controversy under it, the trespass was complete and consummated, and an action accrued to the claimant or owner, on the indemnifying bond, to recover, at least, any damages he might have sustained by reason of such levy and seizure.
It was proved on the trial, that the property in dispute was sold by said sheriff, after the levy and seizure recited in the bond, at public auction, etc. Also, that at the time of such levy and seizure the sheriff (or deputy who made it) had another execution in his hands against Sawtell & Brother in favor of another paity. And there being no evidence introduced tending to prove under which of said executions the sale of the property was in fact made, the defendant asked the court to instruct the jury (in effect) that, although they should believe, from the evidence, that the property in controversy was levied on by such sheriff and taken from 'the *401possession of George F. Sawtell, the trustee and relator in this action, and that he was the bona fide owner thereof, as trustee, &c., yet the plaintiff was not entitled to recover in this action (for the use of said Sawtell) the value of the property unless the jury should be further satisfied, from the evidence, that the property was in fact sold by the sheriff, under the writ of fieri facias recited in the indemnifying bond in favor of the principals therein.
This instruction the court refused to give; but at the instance of the plaintiff, instructed the jury (in effect) that, if they believed from the evidence, that the property described in the declaration and indemnifying bond sued on, was seized by said sheriff and taken from the possession of Sawtell, the trustee and owner, under the execution recited in said bond ; that said Sawtell was, at the time, the bona fide owner thereof (for use, &c.,) and that the property ivas afterwards sold by such sheriff under said execution, or under some other execution against the same parties, levied thereon at the time of said seizure, or under hoth executions, then the plaintiff was entitled to recover the value of said property, the recovery in this action being limited to the penalty of said bond.
As, under the law, it was the duty of the sheriff, in the premises, to levy first the first execution that came into his hands to be levied, and to proceed to sell under it; and as, under the law', he was bound to sell the property in dispute, upon receiving and accepting the indemnifying bond, it must be presumed here, in the absence of evidence to the contrary, ■that he discharged his duty in these respects. And, it seems to me, that in the absence of evidence to the contrary, the presumption is equally fair and reasonable that knowing, as the sheriff did, that the property levied on was claimed by Sawtell, the trustee, he did in fact sell it on the execution for v'hich he was indemnified rather than under the one for which he had no such indemnity ; and consequently, the jury might well have assumed that the sale was made under the former. It follows, therefore, that the appellant’s bill of exceptions shows no error to his prejudice, and that the judgment must be affirmed, with costs and damages.
The other judges concurred.J UDGMENT AFFIRME D.