Turner v. Winn

Blandford, Justice.

This was a rule against the sheriff. In answer to the rule the.sheriff set up that a certain affidavit of illegality had been tendered him by the defendant in execution, and that he had suspended the levy of the same upon certain land and returned the same to court; that he did this in good faith, believing that there was an issue tendered by said'affidavit which required the judgment of the court; and that he did not think it was in his power to adjudicate the issues of law and fact that might arise upon said affidavit of illegality. The court discharged the rule, and the plaintiff in execution excepted and says the court erred in not making the rule absolute.

We think the court did right, or at least did not abuse its discretion, inasmuch as the execution was levied upon land, and it was not shown or attempted, to be shown that the plaintiff in execution suffered any special damage or loss by reason of the action of the sheriff. Although the affidavit itself may not have been sufficient in law to have arrested the execution, yet it is not so manifestly without foundation in law as to lead to the conclusion-that the officer was in contempt in not obeying the process of the court; and the inference may be drawn that he acted in good faith in receiving the affidavit of illegality and returning it and the writ to the court. Judgment affirmed.