
    Charles G. Butler vs. Duncan C. Williams.
    A sheriff, who has made a levy, is bound to make a legal disposition of the property levied on ; and will be liable, on his official bond, for the consequences of an omission to do so.
    It is not a sufficient excuse to a sheriff who had levied on both real estate and personal estate at the same time, and had omitted to sell the latter, that the land levied on had been appraised under the valuation law, at a sum so that two thirds of its value w-ere more than the amount of the judgment; and the land failing, when offered, to bring the two thirds, he had postponed the sale for twelve months, and had returned the personal property to the defendant; he should have sold the personal property under the levy.
    In error from the circuit court of Lafayette county; Hon. F. M. Rogers, judge.
    Duncan C. Williams sued Charles G. Butler, to the October term, 1847, in debt upon the latter’s official bond as sheriff of the county of-; the bond was dated November 27, 1839; and the substance of the breaches was, that Butler, as sheriff, had levied an execution at the suit of Joseph Rice, for the use of Williams, against Jos. W. Bennett and Thomas G. Hudsfeth, on certain land and personal property, and had voluntarily and without authority neglected to sell the personal property. The defendant filéd several special pleas; in effect that he had levied the execution on land and personalty, and the valuation law had been claimed on the land; and two thirds of its appraised value exceeded the amount of the judgment, and the land on being exposed to sale not bringing that sum, he had returned the execution to the court, and has restored the personal property to the debtor. He also plead the statute of limitations of six years, and of three years, and payment. Demurrers were sustained to all the special pleas; and upon issue on the last plea a trial was had, and the jury found for Williams, and Butler sued out this writ of error.
    
      Howry and Hayes, for plaintiff in error,
    On the sufficiency of the pleas setting up the special defence of the levy on sufficient land, &c., cited M’Gehe v. Handley, 5 How. 625; Freem. Ch. R. 571;' Pickens v. Marlow, 2 S. & M. 428.
    On the plea of limitations of three years, they cited 3 How. (Miss.) 238; Hutch. Code, 830, § 4.
    
      H. A. Barr, for defendant in error,
    In support of the demurrer to the special pleas, cited 1 Chit. PI. 588; lb. 326, 630; Pickens v. Marlow, 2 S. & M. 436.
    On the question of limitations he cited Angelí on Lim. 52, 83, 93; Jones- v. Pope, 1 Saund. R. 38, 39.
    
      J. F. Cushman, on same side,
    cited Edwards v. White, 12 Conn. R. 28; 8 Shep. R. 314.
   Per Curiam.

Butler was sued on his official bond as sheriff for a failure to discharge his duty in this; an execution came into his hands, which was levied on land and also on personal property. The property was appr.aised at the request of the defendant in execution, at more than' sufficient to satisfy the execution. The land was offered for sale, and failing to bring two thirds of its value was not sold, and the personal property was delivered back to defendant in execution. The case turns mainly on the pleadings, but none of the special pleas set up a good excuse. The return on the execution showed a levy on personal property, and it was the duty of the sheriff to have sold the property, unless he had some legal excuse for his failure', and it devolved on him to show his excuse. The mere circumstance, that he had levied on land, more than sufficient in value to satisfy the debt, will not do; this might have been a sufficient excuse for a failure to make a further levy, but having seized property, it was his duty to dispose of it legally. A levy when made, must be legally disposed of. The plaintiff in execution has a right to have it sold, unless there be some sufficient reason in law why it should not be sold, and none such has been set up in the pleadings.

Judgment affirmed.  