
    Murdoch M’Lean v. C. C. B. Du Bose.
    Upon the return of a rule against the sheriff, to shew cause, why he had not returned a writ of fi. fa., an order was made, that he pay the money by a given day, or rhat an attachment issue. The money was not paid, and the attachment issued; but, within the time limited, the sheriff sold all the property of the defendant, and applied the proceeds to the satisfaction of older liens. Held, that upon shewing these facts, the sheriff was intitled to dissolve the attachment.
    If the party suing out an attachment against the sheriff, for neglect, has suffered neither delay, nor loss, the sheriff, on doing what he ought to have done in the first instance, is intitled to have the attachment set aside, vide Ex-parte Thurmond, ante. p. 605.
    Before Mr. Justice'HuGER, at Darlington, Spring Term, 1830.
    This was a motion to dissolve an attachment against the sheriff. A rule h.rd been taken out o<rainst him, at the instance of the plaintiff, to shew cause, why he had not returned the writ of fieri facias, sued out ,tt this case; and upon the return of the rule at Fall Term, 1829, an order was made, that he pay to the plaintiff the money due on the said execution, on or before the first Monday in December, then next, or that an attachment issue. The money was not paid, and an attachment was sued out, pursuant to the order. At this term, the sheriff moved to ,. , , „ , . ’ . , , . dissolve the attachment, upon affidavits, that within the time limited, he had sold all the property of the defendant, and applied the proceeds to the satisfaction of older executions. The presiding Judge dissolved the attachment; and the plaintiff now moved to reverse his decision, on ihe grounds:
    1. That his honor had no authority to rescind the order made at the former term by another Judge.
    2. That, under the said order, nothing but the payment of the money could purge the contempt.
    Graham, for the motion.
    Bn andino, contra.
    
   O’Neall., J.

delivered the opinion of the. Court.

In the case of Ex-parte, Thurmond, (ante, p. 605) the Court, this term, has had occasion so fully' to consider the law, in relation to attachments for contempt, that it is only necessary now, to refer to that case, for the principles involved in this; and to shew, that the sheriff in the case before us, was inti-tled to be-diseharged, on his purging the contempt for which the attachment issued. The position, assumed in the argument, that the sheriff is fixed by the attachment for the payment of the debt, interest, and costs; and that lie can be discharged on no other terms, is true, with some qualifications. If the party has sustained neither delay nor loss, then the sheriff by doing what he ought to have done in the first instance, may be discharged. If he is prevented by misfortune from paying over the money, or if be is unable to do so, then upon doing all he can do, he is also intitled to his discharge. In this case, the attachment was ordered nisi, the money was paid by a given day. The sheriff, within the time limited, sold the whole property of the defendant in execution, received the proceeds, and applied them to older executions. Upon this statement of facts, let it be asked, what delay, or loss, has the plaintiff sustained 1 It will be answered, none: for, within the time allowed him to collect the money, he makes use of all legal means to do so, and fails, not by his neglect, but by the insolvency of the debtor. Is the sheriff still in contempt Í He is not: for he is neither wil fully disobeying-, neglecting, nor evading, the mandate of the £¡ou,.t. ¡s disobedience, neglect, or evasion, which const* lutes the sheriff’s contempt.

But it is said, that the order, directing the attachment, requires the sheriff to pay the money, and that the Judge had no right to rescind it. It cannot, however, receive the construction contend* ed for. The payment, or non-payment, of the money was the condition which was to prevent, or cause the attachment to be issued. When issued, it stands upon the footing of all other attachments, and brings the sheriff up to answer for the contempt. Upon being brought up, returning the execution, and shewing the facts which have already been stated,' the contempt was purged, and the Court had the right to discharge him.

This conclusion is in strict conformity with the English cases: for in them, the rule, it will be seen, is uniform; that if the party suing out the attachment has sustained neither delay, nor loss, the sheriff, on doing what he ought to have doue in the first instance, is intitled to have the attachment set aside.

The motion in this case is therefore dismissed.  