On Applicaton por Rehearing.
Watkins, J.This application rests, mainly, on the proposition that the court erred in not sustaining the first three charges and removing the respondent from office. As this is the second appearance of this cause in this court we will merely refer to those charges as they are fully set out in our former opinion (45 An. 1351), the substance of same being: (1) that respondent failed to sell property for cash as required by the writ of seizure and sale; (2) that he made a false return on said writ, to the effect that he had sold the plantation for cash, when, in point of fact, he had not; and (8) that he executed a deed of sale to the purchaser, reciting that the cash had been received by him, when in fact he had not received the cash or any part thereof.
The charge is distinctly made that the aforesaid return was false and fraudulent, and that the deed of sale was false and fraudulent, and that respondent was thereby guilty of misfeasance, corruption and gross misconduct in office and should be removed.
On the argument on this application the further points were made and insisted qpon: (1) that respondent had made a statement to the counsel of the seizing creditor that he had a portion of the funds in his hands when such was not the case, and upon this false statement the attorney acted in making a compromise settlement of the mortgage debt he would not have otherwise made; (2) that on the trial of the rule to distribute proceeds of sale the respondent falsely stated on oath that he had in possession a certain portion of the proceeds of sale in cash, when in fact he had not, and that notwithstanding this last charge was on defendant’s exception rejected on the first trial, yet it may be still considered for the purpose of showing animus in the perpetration of these charges that are remaining for trial.
*192The other specifications of misconduct on the part of the respond - ent — the fifth, sixth, seventh and eighth — are not insisted upon at this time.
In our opinion we held that the fourth charge assigning the perjury had passed out of the case, and for that reason we could not consider or comment on the testimony appertaining thereto; and counsel for the relator now insist that in thus ruling we have ignored “one of the strongest pieces of evidence which proves the intent and motive of the defendant in making the false deed and return, and that it ought to have left no doubt in (our) minds as to the criminal intent of the defendant and his consequent guilt.” (Our italics.)
In our view all this may be conceded and our opinion in this case be perfectly consistent and correct, because we had in our previous opinion sustained an exception to this charge and it passed out of the case; and, as we said in our opinion in this case, “ the specification charging perjury in his (.testimony is not before us, (and) we have not felt at liberty to comment on that testimony.”
In this view the opinion of the court is unchanged, and leaving this charge out of consideration there is no aggravation for the charges remaining.
The case presented is that of a sheriff holding in his hands a writ of seizure and sale directing him to sell certain mortgaged property for cash, and which he advertised and ostensibly sold for cash.
Being enjoined by other creditors claiming a superior lien upon the proceeds of sale from paying over a portion thereof, he made and filed a return stating that said portion of the proceeds were in his hands, and executed a deed of sale to the adjudicatee, reciting that the price had been paid in cash — though the deed was not filed or registered at the time.
While the fact is, that no cash was actually and really paid to the sheriff at all, the sheriff having acted on the advice of counsel of the opponents in making the deed as well as the return, and upon their personal assurance that they would put him in funds whenever same was required; and while the deed was executed as though the cash was to have been paid by the adjudicatee, the payment was postponed for a few days with the consent of the seizing creditor, and before the date agreed upon for the payment had arrived a *193compromise settlement was effected, whereby the creditor accepted notes in settlement of the purchase price.
Acting on the theory, doubtless, that the return was in substantial compliance with the law and satisfactory to the attorneys of the opponents, the sheriff repeated to the attorney for the seizing creditor-that he had in his hands that portion of the proceeds representing-the claims of the third opponents, and this may have exercised some; influence in bringing the settlement about.
But, conceding this to be true, the fact remains that when the-oppositions were decided the funds applicable thereto were promptly paid over and no one suffered any injury, and all of the parties-occupy the same relative positions they each would have occupied if the funds had been actually placed in the sheriff’s hands — the-residue of the purchase price having been discharged by notes satisfactory to the seizing creditor.
Our conclusion is, that while all the charges under consideration-are literally and technically true, yet they are necessarily subordinated to the circumstances and surroundings of that case — the sheriff having yielded to the suggestions of others and suffered himself to be controlled too far, by the advice of counsel, in accepting a consent to employ the forms of law in his return, instead of requiring the cash to be really and actually paid by the adjudicatee according to the order of court and terms of sale.
While no injury was done and no wrong was intended by the respondent we can nob allow the opportunity to pass without expressing our unqualified disapprobation of the course he pursued, and thus give him full and timely warning against similar practices iu the future.
Rehearing refused.