
    Henry S. Sanderson vs. Richard E. Alcock.
    
    Dec’r, 1837.
    An appeal will not lie by the sheriff, from an order of the county court, directing him to bring into court money which he has received upon an execution.
    Appeal from Baltimore county court.
    The appellee in this cause obtained judgment against one Benjamin Brady, and on the 11th May, 1836, sued out a ji. fa. thereon, returnable to September term, 1836. The sheriff not returning the writ, was laid under a rule to return it, on or before the 10th September. On the 17th October, the sheriff (the appellant) having still failed to return the writ, the plaintiff (now appellee) moved for a judgment against him, under the act of 1794, ch. 54, sec. 1.
    The appellant resisted the judgment upon the following grounds:
    1. Because, whether the plaintiff be entitled to the proceeds of the execution against Brady, is a question now depending in this court.
    2. Because a motion is still pending to quash the execution in this cause.
    3. Because the defendant offered, if the plaintiff would indemnify the said Sanderson, to pay him over the proceeds of sale.
    4. Because the said Sanderson is sued for taking said goods, and a bill in equity is also filed against him.
    The appellant then filed his petition in Baltimore county court, admitting the issue and levy of the execution — that the proceeds of the goods were subject to the order of the court that suits at law, and in equity had been brought against him by .various parties for the same proceeds, and he prayed to be allowed his expenses and counsel fees.
    At May term, 1837, the sheriff informed the court that other suits had been brought against him by Erskine and Chapman for the whole proceeds, and then moved the court for a rule on the plaintiff, to show cause why the motion for a judgment against the sheriff should not be extended until the next term, suggesting the reasons before relied on and the further one, that the property was under mortgage at the time of the levy; and produced the mortgage.
    The appellee then moved the court for a judgment against the sheriff under the act of 1797, ch. 43, and filed the answer of Sanderson to one of the equity causes depending against him, showing the amount he had received under the fi. fa. against Brady, and it was now admitted that the mortgage on Brady's goods was satisfied. The proceedings in the several causes against Sanderson were agreed to be received as evidence upon the plaintiff’s motion for a judgment.
    At October term, 1837, Baltimore county court (Archer, Ch. J. Magruder and Purviance, J’s) decided, that the motion for a judgment in this case against the sheriff be overruled, and also the motion to enlarge the time for the sheriff to make return of the fi. fa. in this case. But it appearing to the court from the evidence in the cause, that the sheriff has made on the fi.fa. the sum of $8,158.95, being the net proceeds admitted by the sheriff to be due, after deducting the amount of the judgment obtained by the mortgagees of Brady’s goods and costs, which amount is by consent of the plaintiff’s counsel deducted. It is ordered by the court this 4th October, 1837, that the late sheriff forthwith on the service of this order on him, bring into court the amount thus made, and when brought in, the court will on application stay the money in court, until a bond of indemnity shall be tendered to the sheriff, to be approved of by the court, or one of the judges thereof.
    From which order the said Henry S. Sanderson, late sheriff, appealed.
    At this term the appellee moved to dismiss the appeal.
    The motion was argued before Buchanan, Ch. J. Stephen, Dorsey, Chambers, and Spence, Judges.
    James M. Nicholson, for the appellee, moved,
    For dismissal of the appeal, on the ground that the subject of the decision below, was not of that nature from which an appeal lies.
    The appellant, as sheriff of Baltimore county, had served and levied an execution of fi. fa. issued by the appellee on a judgment in his favour, but had made no return. The appellee moved for a judgment against the appellant (the sheriff) for having failed to make a return, and the appellant moved for an enlargement of the time to make his return. The court refused both motions, but ordered the appellant to bring the proceeds of the executions into court to abide their further disposition. The appellant declined obeying this order, and took an appeal; and the question now presented is, whether an appeal lies from such a decision. In Jessop vs. Brown, 2 Gill and John. 404, a motion was made (apparently in the court of Appeals) by a sheriff for the enlargement of a rule on him to make a return tó a writ of ji.fa. and the court there say, that there is no general rule in such cases, but that each must depend upon its own circumstances. Does not this necessarily imply, that the decision in such cases is wholly in the discretion of the court before whom the motion is made; that being the only tribunal before whom all the circumstances can fully and fairly be brought. If so, no appeal can be taken from the decision of the court below. In Wall vs. Wall, 2 Har. and Gill, 79, the court say that where the subject decided by the inferior court is left by law to their discretion, as in the refusal to grant a new trial, it has been-adjudged, that a writ of error will not lie. But apart from the authority of Jessop vs. Brown, it stands to reason, that a motion by the sheriff for the enlargement of his time in which to make a return to a writ, is a motion to the favour and discretion of the court. The law is imperative, that he shall make a return within, a specified time; and our acts of assembly direct, that judgment shall be entered up against him if he fails to do so. There is no express law authorizing him to obtain from the court an enlargement of that time. The interference of the court in his behalf is matter of practice, and not of positive law, and the practice originated from the fact that as the sheriff was the officer of the court, bound to obey its decrees, is, if at any time, peculiar hardship would be experienced by his carrying out those decrees, it was allowed as a favour for him to ask the interposition of this court, and either compel an indemnity bond to be given, or exempt him from further action. This power, the discretion of the court is appealed to. Their own officer seeks for their protection from the rigour of the law, and if in their opinion they ought to interfere they are competent to do so. But if they think their interference is not necessary, there is no law enabling the sheriff to compel their interference by appeal or in any other way. In the present instance the sheriff, as was proved beyond doubt, (his own admissions,) had sold property under execution and was in possession of the proceeds. He was ruled to make a return of the writ, -which he failed to do, but moved the court for an enlargement of his time, assigning for reason that the property sold was claimed by third parties who had sued him. The court thought that under all the circumstances that he was entitled to an indemnity bond, but not the possession of the money which he had been keeping for a twelve month and upwards without interest. They accordingly order him to bring the money into court to be invested, unless the plaintiff chose to indemnify the sheriff. The sheriff would not abide the decision, but by filing an appeal bond, retains possession of the money. The question is will the appeal lie ? If the interference of the court below was a matter which he could demand as a right, then he can appeal from their decision. If their interference is a mere favour to be exercised by the court in their discretion according to the peculiar circumstances of each case, then their determination is final, and the sheriff must submit without delay.
    R. Johnson, for the appellant.
    The only question now is whether an appeal will lie from the order. It is a command to the sheriff to bring in the money, and may seriously injure him. The money is to be brought into court. But to what situation is the sheriff reduced? Here are four claimants for the same fund. None can tell who has the right. How is he to defend himself? May he not rightfully keep the funds to secure himself?
    An appeal has been sustained by a defendant, ordered to bring money in by the court of Chancery? Thompson vs. McKim, et al, 6 Har. and John. 302. This order settles nothing. The appeal is taken, and money retained by the sheriff because of its consequence to him. There is no distinction between orders at law and in equity. And the appeal is allowed, not because the order is final, but because if professes to be final, and may do great practical injustice, if erroneous.
   APPEAL DISMISSED.  