Sewall v. Henry. We do not understand that the sufficiency of the tender has been questioned; nor are we warranted by the record in indulging an inference against it. [6 Ala. Rep. 226.], Assuming then, that the amount stipulated was duly tendered, (or dispensed with,) by the defendant to the plaintiff, or his agent, on the day agreed on, and we think there can be no doubt that the right to the possession of the slave vested in the defendant, the vendor, and that he might maintain an action of detinue, or if in possession, might successfully defend himself against the vendee. It is not necessary to give to the ruling of the Circuit Court a minute and critical examination; for it is clear that its judgment cannot be supported. The jury should have been informed, that if the writings in respect to the sale, and resale, of the slave in question, were made at the same time, and the defeasance was assented to by the plaintiff, then they evidenced an entire transaction; that the contract was not ą mortgage, but operated as a conditional sale, and if a tender of the amount, and at the time contemplated by the contract, was made by the plaintiff, to the vendee, or his agent, or such tender was dispensed with or waived, then the right to the possession of the slave revested in the defendant, the vendor, and a verdict should be returned in his favor. The interpretation of the writings, (their connection being shown, or perhaps inferred,) devolved upon the Court, and it should not have been referred to the jury to determine their meaning. Other views prevailed, and we think, that that in charging the jury, and in refusing to instruct them as prayed, they were not only misled, but the law was misapprehended. The judgment is consequently reversed, and the cause remanded. Powell v. The Governor, ex rel. POWELL v. THE GOVERNOR, EX REL. 1. It is irregular to ask a witness what was the estimated cash value put on lands by the neighborhood generally. At least this is but hearsay, and those forming the opinions could themselves be called as witnesses. 2. It is the duty of the sheriff so to provide, that the property levied on by him will probably be sufficient to satisfy the executions in his hands; but if he levies on lands which ought, in the estimation of prudent individuals, to produce sufficient, but does not, this furnishes no reason to charge the sheriff, unless actual injury has resulted to other parties from his mistake, and he exercises all the diligence required by law of him, when, after an unproductive sale of land so levied on, he makes an immediate levy on other property, of value sufficient to satisfy the execution, although that cannot be sold until after the return day and is in fact replevied. 3. A sheriff is not bound to levy on personal property, when a sufficient levy can be made, and is made, on land. 4. Nor is the sheriff required to sell at the first sale's day after the execution is in his hands. He has the discretionary power to sell on any of the sale days previous to the return day of the execution to be satisfied. Writ of Error to the Circuit Court of Coosa. ACTION of debt upon a sheriff's bond, at the relation of Patterson, against Powell and others, as the sureties of one Campbell. The breach assigned in the declaration is, that the said Campbell wholly neglected and refused to levy and satisfy a writ of fi. fa. in his hands, as sheriff, at the suit of the plaintiff, against the goods, &c. of one Hobdy, for $234 21. At the trial, the plaintiff produced and read in evidence the writ of fi. fa. which issued the 6th of October, 1841, and was returnable on the 4th Monday in March, 1842. On it was indorsed, that it came to the sheriff's hands on the 15th October, 1841, and a levy on the 1st of November of the same year, upon certain lands. Also, that these lands were sold on the first Monday of March, 1842, and the proceeds applied to older fi. fa's. Also, a levy on four slaves, for which a forthcoming bond was taken, 8th March, 1842. The plaintiff then offered in evidence other executions Powell v. The Governor, ex rel. against Hobdy, which were in the sheriff's hands at the same time, to prove the extent of the liens then against his lands. One of these was for $1000, and another for $127. The defendant objected to this evidence, but the Court admitted it. The plaintiff next offered the execution docket of the clerk of Coosa Circuit Court, to show, that an execution therein described was delivered to the said sheriff, and returned by him, and proved that it had been searched for, but not found in the files, and that the entry on the docket was in the writing of a former clerk of the court, who, at the time of the trial, resided in Mississippi. This was allowed against the objection of the defendant. The entry is thus-"Issued and delivered to W. J. Campbell, sheriff, on the 15th October, 1841, levied on land 1st November, 1841, and sold 7th March, 1842; proceeds applied to former fi. fa's. In order to prove the value of the lands described in the levy, the counsel for the defendant proposed to ask a witness, "what was the estimated cash value put on the lands levied, by the neighborhood generally." The Court excluded the question in this form, but allowed the party to ask the witness, what was his own estimate of the value. The plaintiff offered evidence conducing to prove, that when the sheriff levied on the land, Hobdy had slaves and other personal property, more than sufficient to satisfy all the executions then in the sheriff's hands. Campbell, the sheriff, died during the spring Court of the year 1842. The defendant offered evidence conducing to prove that the lands levied on, at the time of the levy, were then of the cash value, at public sale, of $1600 or $1800. Upon this evidence, the defendant requested the Court to instruct the jury, that if the sheriff levied on lands sufficient in value, when estimated at what the same would sell for at public sale, for cash, to satisfy the executions in his hands, and that he sold it in time to make return thereon of the sales of the same, to the term of the Court to which the executions were returnable; and that if, as soon as he found the lands did not sell for enough to satisfy the executions in hand, he forthwith levied on all the property of the defendant which he could find, and died before the next sale day, this was due diligence, and they ought to find for the de Powell v. The Governor, ex rel. fendant. This was refused, and the jury was charged, that if they found the sheriff levied the execution as set forth in his return, on the 1st of November, on the lands therein described, and that the lands were not sold until the first Monday of March thereafter, and that the proceeds went to satisfy older executions and levies on the same, and that the defendant in execution then had slaves and other personal property, sufficient to satisfy said execution, and other executions in his hands, and that he levied on the slaves on the 8th of March, 1842, as stated in his return, and then took a forthcoming bond for their delivery on the first Monday of April, 1842, a sale day subsequent to the return day of the execution, then the sheriff had not used due diligence, and they ought to find for the plaintiff. The defendants excepted to these several rulings of the Court, and they are now assigned as error. L. E. PARSONS, for the plaintiffs in error, submitted the following points: 1. The action is for not using due diligence in making the money; therefore, any evidence to prove that such diligence was used, was proper. The estimated value of lands in the neighborhood where they were situate, is the fact which will excuse or fix the liability of the sheriff, and therefore the question asked was proper. 2. The charge asked for was proper, because it is the conclusion which the law draws from the facts in evidence. The sheriff is not bound to make a levy which, under all circumstances, must produce the sum to be raised. Indeed, he would be liable for an excessive levy, if he seized more than was probably sufficient for this purpose. 3. If the charge asked for is objectionable, as asking a conclusion upon the facts, that given is equally so, for it takes all discretion from the jury, and pronounces that the facts disclosed amount to no defence. No counsel appeared for the defendant in error. GOLDTHWAITE, J. -1. The Court below was correct in refusing to allow the defendant's witness to answer what was Powell v. The Governor, ex rel. the estimated cash value put on the lands by the neighborhood generally, because the question was calculated to elicit nothing more, than a second-hand notion of the opinions of others, who could themselves furnish the best evidence of their own opinions, and might have been called as witnesses. [P. & M. Bank v. Borland, 5 Ala. Rep. 531.] 2. The matters of law arising out of the charge, and refusal to charge, are of considerable importance in connection with the duties of sheriffs, and therefore require a more extended examination. It will be seen that the entire amount of the executions having a preference over the one which is the cause of this suit, is $1127, and that these together make the aggregate of $1361, excluding all mention of another, junior in date to all of them, the amount of which is not mentioned, and is, for the reason just recited, entirely immaterial. The estimated cash value of the lands at public sale, is from 1600 to $1800, and the question is, whether a levy upon lands of this value, is a sufficient exercise of diligence, by the sheriff, to excuse him from an action, when the land is afterwards sold for such a sum as is insufficient to satisfy the older executions. It is the duty of the sheriff, in executing the powers attached to his office, so to provide, that the property levied on by him, will probably be sufficient to satisfy the executions which he levys; but he is not bound, nor, indeed, will he be justified in making an excessive levy. What will constitute either an excessive, or in-. sufficient levy, must necessarily, to some extent, depend upon the estimated value of property by individuals; and if the sheriff is mistaken in that which he puts upon it, this will furnish no reason to charge him, unless actual injury has resulted to other parties from his mistake. Although sheriffs are held, in general, to a very strict accountability, yet when they proceed bona fide, they will be protected by the courts. Thus, whenever real doubt exists with respect to the title of property which they are required to seize, the time of return will be enlarged at their instance, until a proper indemnity is offered. [Watson on Sheriffs, 195.] A sheriff is not required to sacrifice the property of the execution debtor, at all hazards, nor, indeed, will the court always protect him if he does so. In Keightly v. Bush, 3 Camp. 521, |