Thе record in this case discloses that Huson had a judgment against Roberts and Starke, obtained in 1869, upon which execution issued, and was placed in the hands of the sheriff, Martin, to levy; that a rule had been taken against
Subsequent to these proceedings, upon the rule against Martin, sheriff, this case was presented to the Court by petition setting out these facts аnd the whole record of the original suit below, and asking the Court to instruct the sheriff to proceed to levy and mаke the money on the ji. fa. The Judge declined giving the instructions аsked upon the ground that he had already granted the аttachment absolute for the money due on this fi. fa., against thе sheriff. And this judgment constitutes the error complained of.
This quеstion is somewhat anomalous, and arises under the peculiar circumstances of the case. In the answer of the sheriff to the rule, he sets out as his excuse or reason for not making the money, that the resolution of the Legislature staying the collection of fi. fas., obtained upon debts contracted before June, 1865, prevented him making the money. And this direction was invoked upon the two propоsitions :
1st. That the record disclosed that this case was not within the resolution, and
2d. That the ministerial character of the sheriff’s office and his good faith, might be a ground for his protection, and the instructions prayed were intended tо anticipate the judgment of this Court, and leave him without excuse or defense thereafter, in case he should be protected.
In our opinion the party plаintiff had his option to initiate his proceedings in the Court below. The sheriff was liable to rule or action, but not both, аnd proceedings against him upon rule for the money, susрended other action .until that was disposed of. On waiving any step against the sheriff primarily, they had the right to proсeed before the Court for instructions directing the levy, upon proper petition, mak
And inasmuch as the sheriff, by his bill of exceрtions, superseded the judgment against himself for the money due on this ji. fct., we are of opinion, that the Court had no other instruction to give. He had already decided the question raised by this very petition as against the sheriff, and he could not conclude the parties, defendant, by a judgment оn their respective rights, in such a summary mode as that invoked by the pleadings in this case. We therefore affirm the judgment of the Court below.
Judgment affirmed.