
    Wilks, & Co. vs. Jos. Hasket, et. al.
    
      Defendant to a ca. sa. deposited in the hands of the sheriff the amount of the debts and costs, and took his receipt, stipulating to return the money, if an injunction to restrain further proceedings in the case should be obtained. The injunction was obtained and the sheriff returned the money. Rule ágcdnst the sheriff for Having failed to execute the ca. sa. discharged.
    
    This was a role against the sheriff, to shew cause why he hacf not executed and returned the ca. Sa. The sheriff returned and shewed for cause, that the ca. sa. was “lodged in his office in January; that shortly after, the defendant, Joseph Hasket, arrived in the village, and finding that a ca. sa. was m the sheriff’s hands against him, he deposited with him the amount of the judgment and costs, and took his receipt for the same, to be refunded, provided he obtained an injunction to restrain the proceedings in said case; that the said Jos. Hasket accordingly filed a bill in the court of equity, and on the 24ih February, 1824, obtained an order that a writ of injunction should issue, to stay the proceedings at law in the case; that in pursuance of the above order, the sheriff was served with a writ of injunction, restraining all further proceedings under sadden. sa~. that after he was served with the writ of injuction, agreeably to his accountable receipt, he delivered back to the said Joseph Hasket, the anfeunt he had deposited in his hands.” The sheriff further stated, “ that he was prevented from proceeding under the ca. sa. by the aforesaid writ of injuction issued from the court of equity; so that in'fact the money has never been collected in this case, and that at the time he delivered back the money to the defendant in the ca. sa. he took it bond, with Dr. Todd security, which he is willing to assign to the plaintiffs in this'case.” Upon hearing the rule and cause shewn, his honor granted the following order:' “ It is ordered that the rule he made absolute and that an attachment do issue against th.e sheriff, Allen Barksdale,, esq. for the amount of the debt, interest and costs:” from which order the sheriff' appea-I-cd.and moved the constitutional court to reverse the order, on She following grounds;-
    
      1st. Because the money Was not given to the sheriff in discharge of the debt, but only as security; and from the cause shewn thereon the rule ought to have been- discharged:
    2d. Because the sheriff was bound to obey the writ of in*' junction issued from the court of equity:
    3d. Because if the sheriff acted improperly, the plaintiff should have proceeded against him by an action, and a rule ought not to lie, from the circumstances of the present case.
   The opinion of the court was delivered by

Mr. Justice Richardson.

According to modern practice, the process of attachment ■against the person of an officer of the court is often used as a remedy in order to obtain justice for an individual suitor. But still such process must be always founded upon a contempt supposed to have been committed by the officer towards the court; and generally, by neglecting to execute the lawful order of the court. The doctrine upon this subject has been well considered in the case of The State, vs. the Sheriff of Charleston District, 1 Con. Rep. p. 152, (see also the whole doctrine, with the authorities, all referred to in 1 Bac. abr. 283; tit. Attachment, A.)

Now, wherein has the sheriff committed a contempt of the process of the court? He had in his hands a writ to ts^er'thq body of Joseph Basket, bat omitted to do so, upon the assurance of Hasket and receiving security by money deposited, that he would sue out the process of injuction and arrest the writ. In complying with this request, the sheriff ran the risk of rendering himself personally liable, if Hasket should not obtain the injunction; but in bringing upon himself this risk, he cannot be said to have committed a contempt. He acted rationally, if well assured that the condition of thg, indulgence to Hasket would be fulfilled, and the event has justified his con-, fidence, in as much as the injunction was obtained. Let us ask how the plaintiff would have been beneñtted, if the sheriff had taken the body of Hasket? Had he done so, Hasket must have been discharged the moment that the injuction was lodged with the sheriff; so that the plaintiffs situation is not altered in this respect.

Irby, for motion.

O’Neal, contra.

-'sBut suppose even this point doubtful, or that the sheriff has rendered himself liable to the plaintiffs, neither of which •questions would I anticipate, still as there is at least no direct contempt, and as the sheriff may raise some questions in his de-fence, or shew that Haskct was insolvent, by way of lessening the damages, he should have an opportunity of doing so, ■and the plaintiffs be left to their remedy by action at - law; in which a jury would give damages commensurate with the injury actually sustained, by reason of any misconduct of the sheriff, and the harsh remedy by attaching the person upon a summary hearing, which is in the nature of a criminal proceeding, be avoided.

It is said that attachments for contempt are within the discretion of the court; and this is strictly true, where the contempt is clearly wilful, as for disobeying the order of the court and the like; but where the process of conten!?., is used in order to enforce justice between parties, as in the instance before us, it is to be considered as any other remedial process, the proper subject of appeal. The plaintiffs must therefore be left to their pemedy at law, and the motion granted.

ff$rCnson, and Colcoch, Justices, concurred.  