¶1The opinion of the court was delivered by
¶2On the argument before this court it was asked by the counsel of the plaintiff in error that we should look into the affidavits for the purpose of reviewing the finding of the circuit judge on the facts with respect to the pecuniary standing of the plaintiff in execution. On the motion to amerce, the circuit judge found that the plaintiff in execution stood in such a condition with respect to property as to make his bond that sufficient indemnity which the officer had the right to exact before running the risk of levying on chattels to which a claim of title was made by a third party. There is neither any rule of practice, nor any principle of law, that would justify this court in attempting tore-try a question of this kind. On a writ of error, it is the established doctrine that it is the law, and not the facts of the-case, that is reviewed. I am not aware of any instance in which this' court has undertaken, in revising the proceedings of a law court, to weigh the evidence and to adjudge concerning it. The fact, therefore, must be taken, on this inquiry, as conclusively established, by the finding of the circuit judge, that the plaintiff in execution was a man of means, to such an extent that his bond was a full security to the sheriff on the occasion in question.
¶3The only question, consequently, is, whether a sheriff has the right, under the circumstances presented in this case, to demand a bond with a surety.
¶4The rule is well settled that when personal property, upon which a sheriff is instructed to levy, is claimed by a third party, the officer is not bound to proceed with the writ unless *558the plaintiff furnish him with ample indemnity. Crocker on Sheriffs, § 464 ; Freeman on Executions, § 275. But no case has been referred to, and none has come under-my observation, that maintains the doctrine that under all circumstances the sheriff has the right to require a surety to the bond rendered to him. Such a rule would be needlessly oppressive to a plaintiff in execution. If such, plaintiff is possessed of so much property as to make his own obligation complete security to the officer, there can be no reason why the latter should have it in his power to exact anything beyond such personal obligation. The officer has a right to be fully protected ; but when such full protection is tendered to him he must accept it, and has no right to require anything more. Inasmuch, therefore, as the fact appears in this case, in a conclusive form, that ample indemnity was given to this officer, and that it was illegal for him to require as a pre-requisite to ■making a levy under his writ, the consequence is, the judgment should be, in all things, affirmed.
¶5For affirmance—The Chancellor, Chief Justice, Dalrimple, Dixon, Knapp, Reed, Scudder, Van Syokel, Woodhull, Clement, Dodd, Green, Lathrop, Wales. 14.
¶6For reversal—None.