This was a rule against the sheriff, calling on him to show cause why he should not pay to the plaintiff the amount due on an execution against the defendant, or be attached for contempt in failing to execute the process of the Court. The sheriff in answer to the rule showed for cause that the defendant, on the 4th of August, Í870, filed an affidavit under the provisions of the Act of 1868, for the relief of debtors, and to adjust the same on principles of equity, the note on which the judgment was rendered bearing date prior to the 1st June, 1865. The judgment on which the execution is*16sued is dated 29th September, 1869, that there was a resolution of the General Assembly prohibiting the levy and sale of property under execution on debts contracted prior to 1st June, 1865, and that the property of the defendant has been set apart as a homestead. It appears in the record that the execution was placed in the sheriff’s hands on the 16th of May, 1870, by plaintiff’s attorney, with written notice that the debt on which the judgment was founded was given for the purchase-money of the land on which he was directed and required to levy the execution, that the sheriff' levied the execution on the land as required by the notice, on the 24th of July, 1870. The rule was moved for against him in March, 1871. On hearing the rule and the sheriff’s answer, the Court discharged the same, and the plaintiff excepted. The Court, on the statement of facts disclosed by the record, should have made the rule absolute against the sheriff for the amount of the value of the land which he was notified to levy on and sell, that being the extent of the injury which the plaintiff has sustained by the failure of the sheriff to perform his legal duty, and not the amount due on the execution, if that shall exceed the value of the land. The Court below erred in discharging the rule against the sheriff.
Judgment reversed.