¶1delivered the opinion of the court. The inquisitions of the 2d of September were properly rejected, the plaintiffs having confined their claim of damages to the actual value of the goods. Such inquisitions are not conclusive on the question of property, though, in some cases, and under certain qualifications, they will excuse the sheriff for not proceeding to sell and protect him from a suit for a *151false return. This was so decided in the case of Bayley v. Bates; (8 Johns. Rep. 185.;) but it is there strongly intimated, that if the sheriff should refuse an adequate indemnity, the court would hold him bound to proceed and sell. Many of the cases cited in Bayley v. Bates show, that if the plaintiff in the execution tender an indemnity to the sheriff, it is his duty to proceed. It would be intolerable to consider these inquisitions as decisive of the right of property, considering the manner in which they are taken, and the great abuse to which such a proceeding is liable. I well recollect that in the case of Bayley v. Bates the offer to indemnify the sheriff was verbal, and very loose and unsatisfactory, and not such as the sheriff had a right reasonably to exact; and that it was for that reason the sheriff was held to be excused for returning nulla bona, after he had held an inquest. Here the tender of indemnity was made in writing, with all due solemnity, and in such a way as ought to have induced the sheriff to proceed in the sale.
¶2The evidence of fraud in Morris and Ryer was very strong, and there was, also, some evidence to show that Moores, one of the plaintiffs, was privy to it. I think there was sufficient evidence to entitle the defendant to the opinion of the jury upon it, and that the learned judge should have submitted this part of the case to them. It was by no means so clear a case for the plaintiffs as to entitle them, “ in judgment of law,” to a verdict. On (his ground, without noticing some minor points which have been discussed, I think that there ought to be a new trial.
¶3It may be proper, however, to remark that, if on a future trial of this cause the jury shall be satisfied that Morris and Ryer obtained the goods in question by fraud, that then, according to the doctrine established in the case of Allison, v. Matthieu, the title to the goods never was vested in them, and they, consequently, were not liable to be taken in execution to satisfy the judgment in favour of the plaintiffs.
¶4bfew trial granted, with costs, to abide the event of the suit.