delivered the opinion of the Court; It seems to me very clear, that in the mode of conducting the sale under Evertsonls execution, and particularly in not exacting the money on bids made by Evertson or his agent, no blame is imputable to the sheriff. It would be unreasonable, and injurious to debtors, as well as creditors, to insist, that the creditor on the execution should advance money on his hid, when the sole object of the sale, is to put money in his pocket, by paying a debt due to him. The sale was, therefore, regular and lawful, as regards the sheriff; and he delivered the goods to the purchasers accordingly, on the 2d of July, 1819. On the 4th of August following, the plaintiffs’ execution was delivered to the sheriff. At that time, it is clear, that the sheriff was under no responsibility whatever to these plaintiffs, on account of those goods. On the 17th of August, 1819, the execution of Evertson was set aside ; and a copy of the rule for that purpose was served on the sheriff on the 19th of August; but that order did not invalidate the prior sale under that execution. Fieri non debet, factum, valet. But this Court ordered the sheriff to pay over, and apply the “ moneys collected on that execution, in satisfaction of other executions in his hands, according to their legal priority.” It is certain, that the moneys had not then been “ collected” by the sheriff, on that sale to Evertson and Everitt. On the contrary, it had not been contemplated by the parties, that those moneys were to be paid to the sheriff. In the regular exercise of his official duty, that matter had been otherwise adjusted between them. It seems to me, therefore, that the rule for setting aside that execution, could have no force or effect, as against the sheriff; except as to the moneys actually re-, ceived by him, under that execution. .
*93That rule (setting aside the execution) is not to be regarded as a mandate to the sheriff, to pursue measures to recover the price of the goods sold under Evertson’s execution. We had no power to compel such a procedure, And it is important to remark, that the execution in favour of these plaintiffs issued not from this, Court, but from the Common Pleas of Dutchess; and it was not the office of this Court to give any special authority or instructions to the sheriff, as to the mode of executing the process of that Court. Suppose, then, the purchasers (Everitt and Evert-son) had refused to pay the sheriff for those goods ; I confess I am at a loss to discover, what right of action he had, as sheriff, or otherwise, to compel payment. It seems to me, the only remedy would have been, either by an action on behalf of Frear, the defendant in that execution, or by a bill in Chancery, on behalf of the other creditors.
But if the sheriff might have sustained an action, it does not follow, that he was bound to bring a suit. Though by skilful address and negotiation, he might have induced the payment of those moneys, so that this execution might attach on them; it seems to me, to form no part of his regular official duty.
I think he would have had a right to say to these plaintiffs, “ I sold Frear’s property strictly according to my duty, in obedience to Evertson’s execution ; and 1 have, also, regularly accounted to him, as the judgment creditor, having the oldest execution, for the whole avails of that sale. All this-was done without any notice, or suspicion on my part, that you ever meant to contest the validity of that judgment and execution. Now, I am functus officio, in regard to what was rightfully done by me under that execution. If Everitt and Evertson ought to account to you for those moneys, seek your own remedy against them.’’
But even admitting, that it was the duty of the sheriff to have sued for those moneys, yet if the money never was actually paid to him, he cannot be legally charged for a false return of nulla bona ; because it does not appear, that there was any property of Frear in the hands of those purchasers, on which he could have levied the plaintiff’s execution.
*94Suppose the sheriff had proved the utter insolvency of those purchasers, (Everitt, Evertson, and Gidley,) or that he had sued them with due diligence and failed to recover, wouU the amount of their bids be deemed money in his hands, so as to falsify this return of nulla bona ? I think not.
If any action lies against the sheriff for those moneys, it must be a special action on the case, for connivance with Evertson and Everitt, or for negligence in not suing for those moneys. He certainly had no right to levy the plaintiffs’ execution on any money in the hands of Evertson or Everitt, although it be admitted that they ought to pay it.
It appears, that prior valid executions in the sheriff’s hands were sufficient to absorb all the amount of sales, excepting the bids of Gidley, Everitt, and Evertson, viz. Gidley's bid, 658 dollars 34 cents, EveritPs bid, 560 dollars, and Evertson's bid, 702 dollars 21 cents, which were not paid when this execution was returned.
My conclusion is, that the evidence does not support either of the counts in the declaration, except as to the stove. I infer from the evidence, and the verdict, that the sheriff neglected to sell it; and I have no doubt it was personal property, and not a part of the store in which it stood. We are, therefore, of opinion, that the amount of the verdict be reduced to 45 dollars, according to the special finding of the jury as to the stove.
Judgment accordingly.