
    Samuel Rice vs. T. R. McClintock. Same vs. Same.
    The Court will punish a sheriff who pertinaciously refuses to obey, or culpably neglects the instructions of the plaintiff in execution, to collect his debts in gold or silver.
    BEFORE BUTLER, J., AT FAIRFIELD, SPRING TERM, 1838.
    This was a motion for a rule against D. Gr. Wylie, sheriff of Fairfield district, to show cause why he should not be attached for a contempt of the Court, for not having collected in specie the money due to the above stated case — the plaintiff alleging that he had given him sufficient notice to do so, and that the defendant had abundant property from which it might have been raised.
    The presiding Judge granted the motions, and the sheriff upon oath returned the following answer:
    “That the moneys required to be made by the two excu-tions above stated, amount to a large sum, to wit, about three thousand six hundred and sixty dollars. That no notice or intimation was given to him by the plaintiff until about the middle of last February, that the said moneys would be required to be made in specie. That the defendant McClintock at the time this respondent received notice to collect said moneys in specie was absent from this district, and did not return, nor did respondent see him until about the beginning of March last, respondent then informed said defendant that the plaintiff bad given him notice to collect said moneys in specie, and respondent believes defendant bas made considerable efforts to get specie, but bas failed to do so; and he believes the specie could not have been procured without a very great sacrifice, if it could have been procured by any means at all. Respondent admits that defendant is a man of considerable wealth, but be does not believe that so large a sum as three thousand six hundred and sixty dollars could have been collected in specie, by levy and sale of defendant’s property, at any time since the middle of February last, without making a sacrifice of defendant’s property to a most enormous extent, and the exercise of a severity (not to say cruelty and tyranny,) by a ministerial officer of the law, which this honorable Court would not even approve, much less order and require.
    Respondent deems it unnecessary to refer to the suspension of specie payment by the banks. That circumstance alone renders it almost impossible to raise any large amount of specie at this-time. He further states to this honorable Court, that plaintiff was informed that if he would receive the usual currency of the country, he would pay him forthwith; that this offer was made to plaintiff last month, before he left this State for the State of Alabama, to which he has lately removed ; and supposing the payment of the money to plaintiff before he left the State might be some accommodation to him, this offer was made to him in a spirit of accommodation.
    Respondent further states to this honorable Court, that although he has not, for the reasons above set forth, been able to collect the aforesaid moneys in specie, he has collected the same in the common currency of the country, and is ready to pay the same, to the plaintiff or his agent, or attorney, and that his failure to collect said moneys in specie, is not owing to any want of respect for the process of the Court, but to the condition of the currency; and feels conscious that he has not been' guilty of any contempt or want of respect to the mandates of this honorable Court; and having, in fact, collected the money required by said executions, in the currency usually received in payment of debts, and the same which he has received on other executions, he hopes to be excused and not held to be in contempt.”
    His honor held the answer to be sufficient, and granted an order discharging'the rule.
    
      The plaintiff moved the Court of Appeals for a reversal of that order, because the sheriff was bound to collect the debt in gold or silver after due notice from the plaintiff, the same being the only lawful tender or medium of payment recog-nised by the laws of this State, or permitted by the constitution of the United States; and having neglected to raise the specie by a levy and sale of the defendant’s property, which was amply sufficient for that purpose, he was guilty of a contempt, and should have been punished by attachment.
    Buchanan, plaintiff’s attorney.
    
      Clark and McDowell, contra.
   Curia, per Butler, J.

Prom the grounds taken, this case seems to have been brought up upon the assumption that the judge below was of opinion that a sheriff could not be compelled to collect in gold or silver, money due in his office on an execution, when he was expressly required to do so by the plaintiff. I never entertained a doubt but that gold and silver were demandable as a matter of right, by any citizen, in payment of a debt due to him; or that he could be compelled to regard any other currency as a legal tender. A very different question was presented to me on the circuit; and that was, whether the sheriff had been guilty of a contempt in not having collected in gold or silver, at the time the rule was served, money due upon the execution of Rice vs. McClin-tock. The law is reasonable in its regulations and commandments ; I thought the sheriff was excusable for not collecting the money in gold or silver within the time required by the plaintiff The sum was considerable; three thousand six hundred dollars; the banks, which are the principal depositories of specie, were not paying their notes in coin; and brokers, who had it, lived at a distance. To have sold the defendant’s property under these circumstances, would have occasioned a great sacrifice. I discharged the rule, not upon the ground that the sheriff was strictly justifiable by the law of the land, but that he was excusable in the opinion of the judge. The rule was disposed of by the discretion of the magistrate, and not by the dispensation of the law, The next judge who holds the Court at Winnsborough, may with propriety order the rule to be made absolute. The sheriff will not have the same circumstances, then, to excuse him. For, when be pertinaciously refuses, or culpably neglects, to enforce the process according to its requirements, and the positive instructions of the plaintiff, it may become the duty of the presiding judge to vindicate the authority of the law, and maintain the provisions of the constitution.

My brethren concur with me in these views, and the motion is dismissed.

I concur, but think the rule should have issued, nisi.

J. S. Richardson.  