
    
      H. W. Connor vs. Wm. M. Archer.
    
    1. On the return of a rule against the sheriff, to shew cause why he should not be attached, for not haying collected and paid over the money on a writ of fi.fa.; the sheriff failing to shew cause, by consent the rule was made absolute, and an attachment ordered to issue against the sheriff at any time after a prescribed day, unless, on or before the day fixed, the money should be paid to the plaintiff in the execution, or his attorney, principal, interest and cost. On the day limited by the order of the court, the sheriff did sell the whole of the defendant’s property, except a small remnant, which could not be sold within the legal hours, but which was on the succeeding sale day sold., The proceeds of the sales after discharging older executions, left the plaintiff’s debt unpaid.
    2. An attachment was issued after the day limited in the order of the court. It was Jield, that as the sheriff was in no default in not haying sold all of the defendant’s property on the first day of sale, and the plaintiff having sustained no lossj the attachment was properly dissolved. See ex parte Thmmond, 1 Bailey, 605; M'-Iaan ys. Dubose, 1 lb. 646.
    3. The Act of 1839 seems to be a mere collection into one Act of the laws regulating the sheriff’s duties and liabilities.
    
      Before Earle, J., at Anderson, Fall Term, 1842.
    At October term, 1841, a rule to shew cause was ordered at the instance of Connor, upon Archer, then sheriff of Anderson, “why he should not be attached, &c., in not collecting and paying over the money in a case of Connor, plaintiff, against Saxon Anderson.” On the return of the rule, the sheriff having failed to shew cause, and in the language of the order “having acknowledged that he has no cause to shew,” his honor Judge Evans, made the following order “by consent.” “That the rule be made absolute, and that an attachment do issue against the said Wm. M. Archer, at any time after sale day in December next, unless the said William M. Archer shall, on or before the said sale day in December next, pay over to the plaintiff or his attorney, the principal, interest and costs in the said case.
    On the 28th December, 1841, the attachment was,issued, and lodged 6th January, 1842. At Spring term of Anderson court, application was made to dissolve the attachment, on sundry affidavits, then produced, and which will be exhibited to the court again. By these, and the sheriff's returns to the several executions in his hands against Saxon Anderson, I was well satisfied that the sheriff had done all that he could do, at least all that his duty required him to do, to purge the contempt. At the time the rule was made absolute, the executions had been levied on Anderson’s property. Some of these were of older date than Con-nor’s, and some of later date. The sale had been delayed at the earnest instance of the junior execution creditors, and with the consent of the older, but against the instructions of Connor, in the well founded belief that a sale in September or October would be prejudicial, and. that property would sell for a better price, later in the season. There were two large judgments against Anderson, in Charleston, which turned out to be of older date than Con-nor’s, although this fact was not known at Anderson during these transactions, and which swept the bulk of the sales. Copies of these executions had been entered at Anderson, after Connor’s execution. The originals were sent up in November, from which it appeared that they had been lodged in Charleston, 27th February, 1841. On the sale day in December, the sheriff proceeded to sell the whole of Anderson’s property, except a remnant of merchandize, sold in January, 1842, for 229 dollars, and which remained unsold in December, for want of time. The whole amount of sales, after discharging the older executions, left Connor’s unpaid. I was satisfied that the course pursued by the sheriff, was most beneficial to the creditors generally; that Connor has not only sustained no loss, but that he could not have realized any part of his judgment if the sheriff had sold Anderson’s property before October court. Regarding this as a criminal proceeding, intended to punish, I doubt whether the rule would have been made absolute, if the sheriff had.resisted it; at all events, after his shewing, I did not consider him a fit subject for punishment. Regarding it as a means to enforce civil rights, I would not punish the sheriff for not paying to the plaintiff what he was not entitled to receive, and what he would not have been allowed to retain. The attachment was dissolved,
    
      Grounds of Appeal.
    
    1. Because the attachment as to the payment of the money, was a civil process, issued by order of the court, before the contempt was purged, which must enure to the benefit of the plaintiff, which the court could not discharge.
    
      2. Because the sheriff being in contempt of the court, and not having purged the contempt within the time allowed him, the rights of the plaintiff and liability of the sheriff became fixed, and the court could not dissolve the attachment, except upon the payment of the money, or a shewing that the sheriff was unable to pay.
    3. Because the circumstances of this case did not justify the order that was made by his Honor.
    4. Because the order in other respects was contrary to law.
    Perrin, for the motion.
    In June, the sheriff was instructed to collect. Cited 1 Baily, 605, 646. Acts of 1839, 49. 1 M'Mullan, 316.
    The execution was not returned until after the 9th of March, 1842.
    Whitner, contra.
    The Act of 1839 confers on the sheriff no new power or authority.
   Curia, per

Evans, J.

The sheriff’s liability to be attached, depends on the order made by consent on the 20th October; and it would not be right to connect with the decision of this case any thing which happened before that time. The plaintiff then consented to take an order for an attachment nisi, allowing the sheriff until the sale day in December, to sell Anderson’s property, and pay over the money. The sheriff did so, as far as he was able. Only a small amount remained unsold, and that was because he was unable during the legal hours of sale to effect it. It is only in this particular that this case differs from M'Lean vs. Dubose, 1 Bailey, 646. As far as practicable, equal and even handed justice should be dealt to all. We must not have one rule for the sheriff of Darlington, and a different rule for the sheriff of Anderson. The order for an attachment carries along with it the idea that the sheriff is in some default. If it be gross neglect, the court orders him to be attached forthwith for his contemptuous disregard of the process of the court; if the neglect be slight, or the plaintiff assents, the order usually allows time for the sheriff to do what the writ commands; to wit: to sell the defendant’s property, and pay over the money. If within the time he collects and pays the money, the attachment does not issue; and if he sells within the time all the defendant’s property, and pays it over according to law, he has performed, as far as was within his power, that, for the non-performance of which, the attachment was ordered to be issued. If he had executed the mandate before court, no attachment could have been ordered. If he does so afterwards, and within the time allowed him, he is no longer in contempt, according to the case of M'Lean vs. Dubose. The only difference between that case and this is, that here, for want of time at the sale day in December, some small part of Anderson’s goods remained unsold until January. This does not appear to have been the sheriff’s fault, and certainly has not operated to the prejudice of the plaintiff, Connor, as no part of the money would go to the satisfaction of his case. We do not think the Act of 1839 has made any alteration in the law. That Act seems to be a mere collection into one Act of the laws regulating the sheriff’s duties and liabilities. The motion is dismissed.

Richardson, O’Neall and Earle, JJ,, concurred.  