The grounds taken in the affidavit of illegality would not, per se, relieve the sheriff from liability on a rule. The two first only show, if true, his own default. Nor would his receiving the affidavit, so far as it concerns the third ground, be sufficient, were there not other facts shown in his answer, and at the hearing of the rule: Sharman vs. Lowe, 40 Georgia, 257. The execution on which the rule is founded has on the back of it, at the usual place of indorsing, the names of plaintiff’s attorney, that of Mr. Langmade. There is also on the fi.fa. an affidavit made just before the levy, and under which the levy was made, stating that the land levied on was subject to the judgment, although set apart as a homestead. This affidavit is signed by E. S. Langmade. The sheriff* states in his answer, which is not contradicted, that being in doubt as to his duty, after the affidavit was filed with him, and notice given, that application had been made in ihe bankrupt court for an injunction, he applied to Mr. Langmade for advice, and was told by him, in substance, that he could not safely proceed. This, it would seem, was sufficient to protect the sheriff against a rule for receiving the affidavit, and certainly justified him on a charge of contempt of the process of the court. *612It is true Mr. Langmade does not seem to have been of counsel in the proceedings on the rule, or to have acted any farther in the matter, so far as the record shows. But he must have been the attorney for plaintiff when the affidavit was filed under which the levy was made; and that was only some five weeks before the day on which the property was advertised for sale, and on which day the affidavit of illegality was lodged with the sheriff and notice given of application for injunction. It was on this state of facts that the sheriff took advice of counsel, as has been stated. Three days after the sheriff received the affidavit of illegality and the above notice, the subpoena in the petition for injunction was issued from the United -States district court, and served on the sheriff ten days thereafter, and an injunction did, in fact, issue before the final hearing of the rule. Doubtless the court was satisfied from all this that the sheriff was not in contempt, and was not in collusion with the defendant, or in anywise seeking, to aid him in postponing or avoiding the payment of the debt. These facts distinguish this case from those of Neal vs. Price, 11 Georgia, 297, and Kemp vs. Williams, 41 Ibid., 213. We do not think there was any abuse of discretion by the court in refusing to make the rule absolute.
Judgment affirmed.