that the verdict is not fully authorized, and that the verdict falls short of this in failing to show for the defendant any excuse for his failure to take further steps against Pullen.
With regard to the instructions given by the court to the jury there was no error in the first and second. The third ought not to have been given because there was no evidence upon which to predicate it, and it was therefore abstract. The fourth was erroneous. After the actual return of the first execution there would have been no irregularity, much less any invincible legal obstacle in issuing again the same or another execution. The fifth was not erroneous; nor did the court err in refusing to give the modification asked.
The sixth was irrelevant to the issue and ought not to have been given: and besides it did not state the law correctly. By the common law a sheriff could summon a jury to try the right of property taken by him in execution when the title was doubtful or it was claimed by a third person; and if the verdict was that the property belonged to a third person he was justified in delivering it up. The contrary verdict, however, did not protect him against the suit of the true owner. Yet he was not without relief for the court of law perhaps might interfere if he were still reasonably doubtful about the right, (1 Burr.) or he might file his bill in chancery against the several parties concerned in interest and compel them to interplead and litigate the right in order to ascertain to whom the property belonged. Such was the common law. Our statute (Dig. p. 499, sec. 33,) however, has provided that a verdict against the claimant of the property shall be a full indemnity to the sheriff in proceeding to sell and if the verdict be for the claimant he shall sell if sufficiently indemnified by the plaintiff in execution.
The seventh instruction was abstract. There was no testimony to authorize it. In giving it there was error.
The eighth instruction was also erroneous, and was mischievous, because it had a direct tendency to mislead the jury. We have already made some observations touching this point when noticing the testimony; but will add here by way of showing that
