I understand very distinctly from the Sheriff’s return, taking it all together, that he raised the money brought into Court, except $25, upon the execution in which he was indemnified in acting by Fose and Jones, and which he identifies in the return as no. 1. For although he sets out at large all the executions which came-to his hands, he expressly says that he required an indemnity before he would act in any, and that when he did act it was in consequence of the indemnity. Thus in my opinion, he exclusively appropriated the proceeds of the property seized, to that execution under which he declares that he acted ; and that as to the other executions, he returns that lie found no property of the Defendant Yarborough wherewith to satisfy them. We can in no other sense understand his return ; for he still holds to his indemnity, which he cannot do without thus appropriating the money. To make his return consistent throughout, we must so understand him ; and if it be false as to the other executions, he is liable for its falsify to the Plaintiffs in them, and if subjected, according to his own delarations, he will have no right to complain, for he expressly says that had he not been indemnified, he would not have seized the property which produced the $615. He will then be placed in the situation in which he would have-placed himself, as he says, but for the indemnity, and as the indemnity given by Fox and Jones put him in action, it is *28{jUt fair to give them on.whose behaif they acted the benefit of that action. In cases where the Sheriff has ia |ian(js Qloro than one execution, it is ceriairily corn-potent for him to act under either, and subject himself for an improper preference. In this case the Sheriff has attempted to retain his indemnity, and not to secure to those who indemnified him the benefit which was to result to them, as he still clings to the indemnity, and will not appropriate the proceeds of those acts, which lie acknowledges arose solely from it, to the benefit of those who gave it. I wish to express no opinion, whether the Sheriff, can even in cases of doubt and difficulty, require an indemity ,* whether he is not bound to act at his peril. It is sufficient that in this case he has accepted and acted under one.
As to the indemnity offered by Lewis as agent of S. F. Yarborough, it is sufficient to say, as far as these Appellants are concerned, that it was not given. As to the §25, I think that it should be applied to the alias execution in favor of II. F. Yarborough, for although the original execution issued too late to enable the Sheriff to act under it, yet I think that it created a lien on the goods from the teste, according to the decision of this Court in the case of Brasfield v. Whitaker, which lien was continued by the alias. Although there is something like an appropriation by the Sheriff of this money to the Justice’s executions, for he returns it with them, yet it is not sufficiently explicit to warrant us in saying that he has done so, for I infer that he has left that matter to the Court. The priority acquired by the levy of the first Justice’s execution, I think was lost by taking out another general Jf. fa.
The money made by the Sheriff, was first directed to be applied to the discharge of the alias execution of Richard F. Yarborough; the original execution which preceded it was returned by the Sheriff, too *29 late to hand. It does not appear that it had been put into his hands in time for him to act under it; if not, it . _ , ,. ' , created no hen, and ot course the alias execution must share the fate of those with which it bears equal teste. The second application of the money by the Sheriff was directed to the discharge of Nathan Perry’s executions. They are dated the 16th day of May, A. D. 1828 ; had each heen preceded by an original execution bearing date the 18th day of February, 1828, which were returned, “ levied upon one negro man Edmund, a wagon and a eolt, the property of Thomas Yarborough-” if a venditioni ex-ponas with an alias fi. fa. clause, had afterwards issued, such process wmuld have continued the lien upon the Defendant’s property, from the teste of the first writs, provided they had no t been satisfied by the proceeds of the sales under the venditioni exponas, which might have been the case. But as no venditioni exponas issued, the alias fi. fas. can have no preference over executions bearing equal teste, and must yield to those which are before them.
The return of the Sheriff is made part of the case, and must be taken as true. In deciding upon that, it is not intended to decide any question between the Sheriff and the creditors, but only those arising between the execution creditors.
Then it is assumed as a fact, that in case the indemnity had not been given, the Sheriff would not have levied upon the property ; because it was too doubtful whether the Defendant had any title to it — whether the title had not passed from him. As the State Bank or its agents indemnified him, and must suffer in case the property proves not to be the Defendant’s, so they ought to be gainers, and have their execution satisfied in case it turns out to be his. This seems to be the justice of the case, and no principle of law has been shown that impugned it.
*30Per Curiam. — Let the judgment be reversed, and apply g615 of the money in office, solely to the satisfaction 0f j.|ie execut¡on i„ favor of the State Bank against Tho~ mas Yarborough, Lark Fox and James C. Jones, and apply the remaining 25 dollars to the satisfaction of the execution in favor of R. F. Yarborough.