
    J. J. Bell et al., plaintiffs in error, vs. C. C. Thorpe, defendant in error.
    1. Sheriffs, though out of office, are liable to rule, under the provisions of the Code.
    2. It was error in the Judge, upon the trial of the traverse of the sheriff’s answer, to reject evidence of the fact that the defendant in fi. fa. had property in his possession sufficient to satisfy the judgment, at the time of the return of nulla bona by such sheriff upon the execution.
    Rules against sheriffs. Before Judge Sessions. McIntosh Superior Court. December Term, 1870.
    The facts are in the opinion.
    William B. Gatilden, for plaintiffs in error.
    No appearance for defendant.
   Lochrane, Chief Justice.

1. This was a rule against a former sheriff upon a fi. fa. for the collection of money. The answer of the sheriff says he has not collected the money, upon the ground that there was no property to levy on, and that he had used all diligence to find property. This answer was traversed, and it is set up that the present sheriff had levied a younger fi. fa., sold certain property, and paid over the money thereon to the amount of $500 00, being larger than this demand, and also that the owners are foreclosing a mortgage on lands belonging to defendant in fi. fa. of younger date. The case came on for trial, and movant offered to prove the property in defendant’s possession, and its sale as stated. The Court rejected the evidence, and said it would be unnecessary to submit the case to the jury, as they would be controlled by his decision, and he entered the following order dismissing the rule, etc.:

Upon hearing the within and foregoing rule and traverse it is ordered that the same be dismissed, upon the ground that plaintiffs are too late, the sheriff having made his return of no property to be found on the 14th December, 1868, and no action taken until December, 1870, notwithstanding there was property, on which he could have levied, in the county, and which was levied on and sold 1st of March, 1870, under a junior fi. fa., and proceeds, $1,000 00, paid over to the minor plaintiffs in fi. fa.” Signed, and dated December 17th, 1870.

We hold that the judgment of the Court in this case was error. The sheriff was liable to rule after he left office, under the Code of this State.

2. And the evidence ought to have been admitted, and the case submitted to the jury for their consideration, under the charge of the Court, upon the law applicable to the case. The fact of a return of nulla bona by the sheriff when in office is not in itself such an entry as protects him from rule, and the lapse of time stated before the proceedings were instituted did not bar such motion by rule and attachment in case it could be made to appear by proof that such entry was untrue. And the evidence rejected was proper, and admissible for the consideration of the jury.

Judgment reversed.  