
    *Pitman & Day vs. William Clarke. Hall & Co. vs. The Same.
    A Sheriff cannot be relieved from an attachment issued against him, nor can he have it dissolved, unless he can show that he has used all the means in his power, under the execution against the defendant, to obviate and repair the consequences of liis former default; and that the loss to be suffered, did not arise from his negligence, but from the absolute insolvency of the defendant.
    Before Butler, J., at Lancaster, Spring Term, 1841.
    This was a motion to dissolve certain attachments, which had been issued at the instance of the plaintiffs, against Leroy Secrest, late Sheriff of Lancaster District, as for a contempt, in not collecting and paying over the money on certain executions of the plaintiffs, against the defendant; and also, for not returning the executions according to law.
    KULE AGAINST PLAINTIFFS.
    “An attachment having issued in the above cases, against Leroy Secrest, former sheriff, for not collecting and paying over the money, and returning the executions, in the above cases; and the said Leroy, since suing out the attachments, having sold all the property of defendant on the executions, and paid over the money, and returned the executions: on motion of Clinton, attorney for Leroy Secrest, it is ordered, that the plaintiffs in the executions show cause, during the sitting of this Court, why the attachments should not be dissolved; and that service of this rule be made on the attorney on record. ’ ’
    The following cause was shown to the above rule:
    
      Thomas J. Wright, the attorney for plaintiffs,
    in obedience to the rule served upon him, requiring the plaintiffs to show cause why the attachments sued out in their favor against Leroy Secrest, late sheriff, should not be dissolved, respectfully submits for them the following cause, on oath.
    The executions in favor of the plaintiffs against Clarke, were lodged in the sheriff’s office on the 15th April, 1839. By law, it was the duty of the sheriff to make the money and return the executions at the next term of the Court succeeding *their lodgment, to wit: at Fall Term, 1839. All this, however, the sheriff entirely failed to do, and during all this time, the defendant in tlie executions was continually engaged in selling and disposing of his stock of goods and merchandize, which, with a house and lot, constituted almost the only means out of which these debts could be levied. At Fall Term, 1839, a rule was taken out against the sheriff, to show cause why he had not made the money, which, on the 9th November, 1839, was made absolute against him, and it was ordered by the Court that he should pay the plaintiffs the debts, on or before the first Monday in December, 1839, or that an attachment should issue against him for a contempt.
    This time being allowed to the sheriff expressly to enable him to remedy his past default.
    But this order of the Court was likewise wholly disregarded by the sheriff, who permitted the defendant, Clarke, to continue, as before, to sell and dispose of his stock of goods, and consequently, to diminish the available means out of which it was possible for him, the sheriff, to make the money.
    The house and lot of defendant, Clarke, was levied on, it appears, the 15th November, 1839, was not sold until the 3d of August, 1840, about nine months after he was ordered to pay the money. On the same day, the 3d August, as appears from the sheriff’s sale book, the stock of goods and merchandise of the defendant was levied on, but not sold until the 3d November and 6th of December, 1840, more than twelve months after the order of the Court to pay the money. During a great portion of this time, as has already been stated, Clarke, the defendant in the executions, was engaged in selling off his stock, and thus wasting the means out of which the plaintiffs were entitled to have their debts satisfied, and out of which it was the imperious duty of the sheriff to have made the money; and during the same time dgponent was urging him to do so. Besides, this deponent knows that the sheriff himself, after his levy on the goods, sold many of them at private sale ; deponent, himself, purchased some of the goods thus, and knows of others having so purchased. This deponent further states, as a fact, that when the goods were ultimately sold, a large portion of them, as the sales book shows, were knocked down to John C. Secrest, a minor son of the sheriff, but were in fact bid off at the sale by the sheriff himself, in clear violation of law. This deponent, too, believes that the sheriff has not yet sold all defendant’s property which was bound by these executions, to wit, a horse, and, it may be, something else. The deponent further states, that he is informed, and believes, and is ready to make appear, by proof, that long before the sale of defendant’s goods, as set forth in the sale book, the sheriff entered into a private agreement with Clarke, for the purchase of the stock of goods which were bound by the executions, and that according to the estimate placed on them, in that contract, their value amounted to §1600 or §1700. That it was agreed between them, that to confirm this sale, the goods should be offered by the sheriff, and bid off by some agent for him, he to be responsible to Clarke or Clarke’s creditors for the price agreed on as aforesaid. That in pursuance of this arrangement, the goods were put up in bulk, and bid off by the sheriff, or some one for him, in the name of his minor son John C. Secrest, and that subsequent to this sale, he took possession of the store, and sold many of the goods at private sale ; all which actings and doings were clearly and manifestly illegal and void. This deponent is informed, also, that the house and lot would have brought a much better price, if it had been sold on a previous sale day, on which it had been advertised; but the sale was capriciously, or from some cause known to himself, put off by the sheriff, to a time when the individual who wished to purchase was not present. The goods, too, when sold, were knocked off in great haste, and hence, necessarily, at a reduced price. Certain this deponent is, that the plaintiffs in the executions against Clarke, have been greatly delayed and injured by the sheriff’s course in this matter.
    Neither have the proceeds of the sale of the goods been paid over, unless within a few days a part may have been paid to the coroner. Neither has the sheriff to this day returned the executions according to law; nor can this deponent procure them either from the clerk’s or sheriff’s office. This deponent now submits, that in the order making the rule absolute, time was allowed the sheriff to make the money out of Clarke’s estate, and if, within that time, ho had sold the whole of defendant’s estate, he might have dissolved the attachment, nor would he have been Opposed in that motion; but, as he flagrantly neglected duty, and disobeyed the *order of the Court, and as he has permitted Clarke’s estate to be wasted, and as it is clear that the plaintiffs have been delayed, hindered, injured, and in all probability lost their debts, by his negligence and malfeasance, he is not now entitled to have the attachment dissolved. All which is respectfully submitted.
    Sworn to before me, this 9th April, 1841.
    S. BECKHAM, Clerk.
    
    The following endorsements and returns are made on the executions of Leroy Secrest, sheriff, to wit: on the execution of Pitman & Day, as follows : “ Entered in my office, 15th April, 1839, L. Secrest, S. L. D.” “ I have levied on the house and lot, whereon the defendant lives, lying on Gay street, White street and B. P. Sadler’s lot, and known in the plan of the tewn by Nos. 8 and 41, as the property of defendant. 15 Nov., 1839. L. Secrest, S. L. D.” (Debt in part, $85.) “I have levied on the goods, wares, and merchandize, in defendant’s store, as the property of defendant. 3 August, 1840. L. Secrest, S. L. D.” “2d Nov. and 0th Dec., 1840. Goods sold for $851 85. An account of sales attached to this execution: ” “ I can find no more of the goods and chattels, lands and tenements of defendant, of which to make any other or more money. L. Secrest, S. L. D.” Paid to the attorney, G. W. Williams, in the case of J, W. Kerrby vs. W. Clarke, before sale of lands and goods, $350 46, of debt and attorney’s cost, for which I detain out of the sales of the goods. Sales of the goods, - $851 85 Paid on Kerrby’s case, to G. W. Williams, - $350 46
    “ Attorney’s cost, in the above case, - 11 00
    “ Sheriff’s cost in the above case, - - - - 13 50
    “ “ “ in Hall & Co’s case, - - - 16 00
    “ “ “ in Pitman & Day’s case, ... 14 50 — 405 00
    $446 39
    The following return is endorsed on the execution of Hall & Co., to wit: “ Entered in my office 15 April, 1839, L. Secrest, S. L. D. I have levied on the house and lot whereon defendant lives, on Main street, Gay street, White street, and B. F. Sadler’s lot, and known in the plan of the town by Nos. 8 and 41, as the property of defendant, 15 Nov., 1839. L. Secrest, S. L. D.” (Debt in part, $69.) Bid by Caleb Clarke, *at $700, 3d August, 1840. Bid paid, and titles made, 3d Aug., 1840. I have levied on the goods, wares, and merchandize in defendant’s store, as defendant’s property. 3 Aug. 1840. Leroy Secrest, S. L. D. 2d Nov. and 6 Dec., 1840, goods sold for $851 85: an account of sales attached to this execution. I can find no more of the goods and chattels, lands and tenements of this defendant, of which to make any other or more money. L. Secrest, S. L. D. Sales of goods — how disposed of — see the case of Pitman & Day against this defendant. 5 Aug., 1840, paid to F. J. Wright, plaintiffs’ attorney, $1000, of sales of land. L. Secrest, S. L. D.
    Ent’d, 4 March, 1841. II. HANCOCK, S. L. D.
    The sheriff, on his part, upon taking up the rule, submitted the following affidavit:
    Personally appeared B. F. Sadler and J. Adams, and made oath, that they knew the property of Wm. Clarke for the last two years ; that they also knew the time when it was exposed to sale by Leroy Secrest, late sheriff of Lancaster district, and believe the said property then sold for as much as it would have done at any time within one or two years previously. That part of the property of said Clarke consisted of goods, wares, and merchandize, he being a merchant. And we believe that the way in which the said goods were sold was the best that could have been prescribed, and that they brought as much or more than they would if sold in any other way. That they also believe the judgment creditors of said Clarke suffered no loss from the delay of said Secrest to enforce the said executions, further than the inconvenience arising from the delay of receiving the money.
    Sworn to and subscribed by B. F. SADLER,
    J. ADAMS,
    W. G. COXE.
    
      The Court, after hearing the cause for and against dissolving the attachments, as aforesaid, made this order.
    The plaintiffs, by their attorney, having shown sufficient cause to the rule taken out against them by Leroy Secrest, *Esq., late sheriff, requiring them to show cause why the attachment sued out in their favor against him should not be dissolved, — on motion of Wright, ordered that the rule be dismissed.
    GROUNDS OP APPEAL.
    1. Because his Honor held that he could not order the attachments to be dissolved, inasmuch as it would be setting aside the order of another Judge.
    2. Because his Honor ruled that the contempt can only be purged upon the Sheriff’s paying over to the plaintiffs, the whole amount of the executions upon which the attachments issued.
    3. Because his Honor should have ordered the attachments to be dissolved, inasmuch as the sheriff, under the executions, sold all the property, real and personal, which defendant owned or possessed at the time, or since the lodgment of the executions, thereby putting the plaintiffs in as good situation as if the sheriff had sold before the return of the executions.
    
      Clinton, for the motion,
    cited Ex parte Thurman, 1 Bail. 605. A party can only require the sheriff to place them in the same position that they would be had he done his duty.
    There was no testimony that went to show that the plaintiffs in these executions have been damnified.
    That the sheriff could meet them on the facts, if the Court would, order an issue to try whether the plaintiffs have sustained any loss. Cited Daniels vs. Capers, 4 McC. 237.
    
      Wright, contra.
   Curia, per

Butler, J.

I did not, on the circuit, nor do I now, question the authority of the cases of Ex parte Thurman, McClane vs. Duboze, (1 Bail. 647.) It was decided in these cases, that a sheriff could be relieved from an attachment ordered against him, by having it dissolved, when he had shown that he had used all the means in his power, under the execution against the defendant, to obviate and repel the consequences of his former default; and when it appeared the loss to be suffered did not arise from his negligence, but from the absolute insolvency of the defendant in execution. There was *no negligence or contumacy imputable to the sheriff in those cases, for disobeying the positive instructions of the plaintiff, or refusing to comply with the order of the Court, to make the money, within the time limited. When a sheriff undertakes to vary from the requisitions of the law, in his mode of proceeding, and to consult his discretion and judgment, instead of obeying the mandate of the Court, he takes a position which entitles him to little favor and indulgence. A sheriff should never forget that he is a mere ministerial officer of the law, to execute, with little or no discretion, the judgment of the Court. The judgment, when pronounced, is the voice of the law, peremptory and explicit, and should be implicitly obeyed by every officer intrusted with its execution. When it shall be regarded as a reproach, that a sheriff is ruled for not making money, except in cases of controversy and absolute inability to raise it under fi. fa., there will be fewer insolvent sheriffs, and a greater confidence in legal proceedings. When an officer asks for relief and forgiveness, he should either show that he has committed no wilful fault, or that he has clone every thing in his power to repair it. The sheriff, in the case under consideration, does not occupy this situation. He wilfully omitted to do his duty in the first instance, and when he was ordered to be attached for his default, instead of proceeding forthwith to make the money, within a time allowed him, and when he was required to do so by the positive instructions of plaintiff’s attorney, he delays and consults his own discretion — pursuing a course not sanctioned by the law, and one which would lead to great mischief if countenanced by this Court, that of selling at private sale, property levied on under execution.

See Connor vs. Archer, 1 Sp. 89; 2 Rich. 529. An.

We cannot look beyond the return of Wright, the attorney, and that presents a case of culpable negligence on the part of the sheriff, Throughout he seems to have been utterly indifferent to legal process, and to have taken his own irregular and illegal course. He cannot complain if the consequences are visited on him. The decision below is affirmed, and this motion dismissed.

The whole court concurred.  