delivered the opinion of the court, January 2d 1883.
On the 15th day of June 1878, a writ of levari facias, at the suit of W. P. Bratton against Johnston and McIntyre, was issued to B. B. Dunkle, as sheriff of the county of Clarion, commanding him to sell a certain leasehold estate of the defendants as therein described. On the day of the sale and just before the bidding commenced, inquiries were made by Harrington of the sheriff concerning some four hundred feet of casing which had been upon the leasehold, but which at that time were missing. In answer thereto, the sheriff informed him that there was that amount of casing which belonged to the property; that he had loaned it to some one interested in an oil well on the-Booth farm; that it was to have been returned before the sale; that it should be included in the sale, and that he would deliver it to the purchaser. He also repeated publicly, that he would include the casing in the sale, and that he would deliver it to the purchaser. This is the testimony of the two Brennemans and of Charles Harrington; it is corroborated by the evidence .of Miles Sloan, and is contradicted by no one except the defendant himself. Induced by this declaration and agreement Dunkle, the plaintiff, bid off the property for the sum of three hundred and eighty live dollars, and at once paid this amount to the sheriff’s clerk.
The learned counsel for the defendant contends that this evidence ought not to have been submitted to the jury for the purpose of establishing a personal undertaking on the part of the sheriff to sell and deliver the casing. But why not? Had he as a private person been selling the property as his own, no one; we think, would contend that he would not have been bound by such a contract. His duty as an officer was a plain one; he had but to pursue the directions of his writ without undertaking either to sell or deliver what was not in his possession. Doubtless he would have so done but for the fact that he had previously and unwarrantably intermeddled with the property and made himself personally liable therefor by loaning it to an operator on the Booth farm. “ Herein is found not only the reason, but the consideration, for this anomalous contract. By this arrangement with the purchaser at his sale, the sheriff relieved himself from the undoubted obligation which he was under, to the plaintiff in the writ, to account for the easing which he had disposed of. If then this contract was made for his own benefit, why was it not personal, and why cannot it be enforced as such? We have as yet heard no reason which ought to induce *466us to adopt a contrary conclusion, and we, therefore, cannot agree to sustain the second and fourth assignments of the plaintiff in error.
Of the two remaining exceptions little need be said, as they are of no consequence. The writ of injunction, or prohibition, was properly admitted for the purpose proposed, the contradiction of the defendant. It was directed to the sheriff and by him executed, and it might fairly be presumed that he knew its contents, In fact, however, an inspection of the paper shows it to have been of so little account as a matter of evidence, that we may well wonder why its admission was thought worthy of an exception.
As to the ruling out of the parol proof of the contents of the advertisements, we may as an abstract proposition, admit that that action of the court was wrong, nevertheless, as we cannot see how evidence of that kind could at all affect the case in any way, we will not consent to reverse on a worthless abstraction, and this the rather as the defendant successfully opposed the introduction of the very same kind of evidence on the part of the plaintiff. The preceding acts of Dunkle, as sheriff, had really little or nothing to do with the main point of the case; the point on which alone it turned; the fact of there having been a personal contract, at the time of the sale, by which he undertook to deliver the property to the plaintiff. Upon the question of that contract the character of the advertisements could have no effect, hence their admission or rejection was alike unimportant.
The judgment is affirmed.