This was a rule against the sheriff calling upon him to show cause why he had not made the money on a fi. fa. placed in his hands, which issued on the foreclosure of a mortgage of two-thirds of a stock of goods, against the defendant, in favor’of the mortgagees and plaintiffs in thefi.fa. It appears, from the record, that the sheriff had levied the fi. fa. on the two-thirds interest of the stock of goods in the possession of the defendant on the 10th day of April, 1871, and left the same in the possession of the defendant; that he did not advertise the goods for sale until the first Tuesday in October, 1871; that the defendant notified the sheriff, after the levy on the goods, that he could and would apply for a homestead exemption of the goods, and that he had done so > that on the 19th day of September, 1871, the goods were set apart to the defendant by the Ordinary as a homestead exemption. The sheriff, in his answer, also stated other reasons why he should not be held liable, and especially that there was another stock of goods in the house in which he had left the goods levied on, and that the owner controlled the key, (without stating who was the owner of the house;) that he could not have sold and delivered the stock of goods at the time the same were advertised for sale unless by breaking open the storehouse, which he did not feel authorized to do. The plaintiff demurred to the sheriff’s answer as being insufficient in law to excuse him from liability. The Court sustained the demurrer to all of the answer of the sheriff except that part of it ivhich related to the defendant’s homestead exemption, but overruled the demurrer as to that, and dismissed the rule; whereupon the plaintiff excepted. When the mortgage j/i. fa. was delivered to the sheriff, the law made it his duty to levy on the mortgaged property, to advertise *133aucl sell the same in the maimer prescribed thereby: Code, 3896. This he did not do, but because the defendant notified him that he could, would, and had applied for a homestead exemption of the goods levied on, he postponed advertising the goods for sale under his levy made thereon on the 10th of April, 1871, until the first Tuesday' in October, 1871, and in the meantime the defendant obtained his homestead exemption of the goods on the 19th of September prior to the first Tuesday in October, when the sheriff had advertised the goods for sale. This neglect of duty on the part of the sheriff, in not advertising the sale of the goods levied on by him until after the defendant had obtained his homestead exemption thereon, looks very much like there was an understanding and collusion between the sheriff and the defendant, that the goods should not be sold under the mortgage^. fa. until after the defendant had obtained his homestead exemption, so as to prevent them from being sold under it. In view of the facts of this case, as disclosed in the record, the Court below erred in not sustaining the demurrer to that part of the sheriff’s answer relating to the defendant’s homestead exemption, and in not making the rule absolute against the sheriff for the value of the goods levied on.

Let the judgment of the Court below be reversed.