delivered the opinion of the court.

Two executions emanating on judgments rendered on the same day against John Lawson, were placed in the hands of the sheriff of Monroe county.

Lawson’s property being incumbered by a deed of trust, the sheriff refused to levy and sell under either execution without first being indemnified. Henrys, Smith, & Townsend refused to give the indemnity, but it was given on demand by Townsend and Millikin; whereupon the sheriff proceeded to sell under the several executions in his hands against the defendant therein.

The question for decision under this state of case is, whether the creditors above named shall share equally the proceeds of the sale, or whether the creditor, who gave the bond of indemnity, shall be first paid.

The facts disclosed by the record present a ease in which the sheriff was clearly authorized to demand indemnity, which, when legally demanded, could only be refused by the creditor at his peril. The statute prescribes the course which the sheriff may thereafter pursue in regard to the property. He may restore it to the person from whose possession it had been taken, and this will, together with the other facts, be a legal return on the execution.

From the whole record, it is manifest that the sale of the property was but the result of the superior diligence, risk, and responsibility of Townsend and Millikin. By their bond, the liability of the sheriff is shifted to them; and they are liable, *206not only for the amount of the judgment, but for the actual value of the property sold under their execution. It, would, under these circumstances, be palpably unjust to permit the parties to share equally the money, when they had refused to divide that responsibility necessary to be assumed to induce efficient action on the part of the officer. Without the indemnity, there would have been no.sale; and the defendants in error are only left by this decision in the situation they elected to place themselves.

Judgment reversed; and judgment in this court appropriat- • ing the money to the plaintiffs in error.