
    Stone v. Pointer.
    Decided, December 7th, 1816.
    i. Sheriffs — Duty to Sell When Indemnity Bond Given.  —tinder the Act oí Assembly consenting Sheriffs, (Rev. Code, 2d yol. p. 160.) the Sheriff, having received the bond ot indemnity, is bound to sell the property taken in execution, whether it belongs to the debtor, or not.
    
      2. Same — Same—Warranty of Title. — in such case, there is no implied warranty by the Sheriff of the title to the property sold, nor implied promise to refund the purchase money if the buyer be evicted.
    Stokely Turner, having' sued out a fi. fa. against Nathaniel Jones, put it into the hands of Stone, Sheriff of Halifax, who, by Turner’s direction, levied it on three slaves; the sale of *which being forbidden, Stone demanded an
    indemnifying bond, which was given accordingly, and returned to the Clerk’s office; whereupon, the Sheriff sold the property to Pointer, “who bid for and bought the same, with full knowledge of all the circumstances of the title of the party who afterwards recovered them. ” The Sheriff immediately paid over the money to Turner. An action of Detinue was brought against Pointer for the slaves, so purchased by him; and they were rceovered of him. He then brought an action of Assumpsit against the Sheriff, to recover of him the •purchase money, and expenses incurred in defending the title.
    The Declaration contained two Counts; one stating the circumstances specially, and charging a promise to pay; the other, in the usual form, for money had and received. Plea non assumpsit, and issue.
    The Jury found a verdict for the plaintiff, subject to the Court’s opinion, bn a case, which presented the above facts, but did not state any promise by the defendant. The Superior Court of Daw gave judgment for the plaintiff; and the defendant appealed to this Court.
    Leigh, for the Appellant,
    insisted, that, where there is neither an express, nor implied promise of re-payment, an action for money paid and advanced, or had ‘ and received, does not lie; and that from the facts, stated in this-case, it was not possible to imply a contract binding the Sheriff to warrant the title, or to refund the purchase money.
    Bouldin, contra,
    relied on -the general proposition, that a seller of personal property warrants the title. There is no reason for making a difference in this respect, between a Sheriff’s sale, and other sales. The act of levying a fi. fa. is a strong declaration, by the Sheriff, that the property belongs to the defendant. The policy of the country requires that the purchaser should consider the Sheriff responsible for the title. There is no privity between the purchaser and the creditor.
    It is contended that the Sheriff is compelled to pay over the money to the creditor: but the law does not compel him to levy the execution on property, not belonging to the defendant, though shown to him as his property. The Act of Assembly *does not prevent him from putting it upon the parties to try their title, as the Court, in Baird v. Rice,  said he might. The right of the creditor to give an indemnifying bond does not compel the Sheriff to levy the execution. The Sheriff acts at his peril. If he' be not responsible to the purchaser, he may, by a little tampering with a claimant, raise money by execution, out of property, that does not belong to the debtor.
    A more serious question in this case is, whether the purchaser’s having notice of the existing claim shall deprive him of remedy. But in the nature of the case, there was, I contend, an express warranty by the Sheriff. The purchaser’s being induced by the Sheriff to purchase, and being injured, is sufficient consideration to raise an assumpsit. The Sheriff, too, is indemnified; so that the creditor, who has improperly received the money, is ultimately responsible to him.
    Assumpsit for money had and received, is the proper form of action, where the seller affirms the property to be his, and it turns out not to be so. 
    
    Leigh in reply.
    I do not controvert the general rule of law, that the seller is responsible for the title; but I find no instance where this rule has been applied to a public officer, who is compelled to sell, and compelled to pay over the money. The Sheriff, when the creditor shews him the property, and offers the bond of indemnity, is bound to levy the execution, and to sell. The bond is given to protect the Sheriff against the right of the person claiming the property, not against the suit of the purchaser to recover his money back. Besides, under the Act of Assembly, the person authorized to sue upon the bond, is not the Sheriff, but the claimant of the property. There would be greater propriety in the purchaser’s suing the creditor, (to whom the money has been paid over,) than the Sheriff.
    
      
       rimlemnifying Bonds — Failure of Officer to Require- - Effect. — The indemnifying bond law was made for the ease of the officer, and exonerates him, to a certain extent, from his common law liability In cases of illegal seizures, and from the measures previously necessary to be resorted to, to ascertain the title of the property. But, if the bond be not duly required by him, his common law liabilitiy is supposed to continue. Davis v. Com., 13 Gratt. 143, citing- principal case.
      The principal case is also cited in Brent v. Green, 6 Leigh 29.
      See further, monographic note on “Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152.
    
    
      
       Bull N. P. 130; 1 Term Rep. 20.
    
    
      
       Rev. Code, 2d Vol. ch. 129, p. lfiO.
    
    
      
       1 Call. 22.
    
    
      
       1 Esp. N. P. 11.
    
   December 7th, 1816, pronounced the following opinion of the Court.

JUDGE ROANE

This is an action of Assumpsit, brought by the Appellee against the Appellant, as Sheriff of the County of Halifax. The Declaration contains two Counts. The first states, in *substance, that a fi. fa. had issued at the suit of Turner against Jones, which came to the hands of the defendant, and was by him levied on three negroes; that, afterwards, a doubt arising as to the title of the said Jones to the said negroes, the defendant, the Sheriff, demanded from said Turner, a bond of indemnity under the Act; which bond was given; and that, thereupon the said slaves were exposed to sale, and purchased by the plaintiff, for 1041. which the defendant then received from the plaintiff. It then states that an action of Detinue was afterwards brought by one Samuel Pointer for the said slaves, who recovered the same with one penny damages, whereby the plaintiff was obliged to deliver up the said negroes, and pay the damages aforesaid; by reason whereof, the Declaration avers, the defendant became liable to refund to the plaintiff, the price paid for the said negroes, and the costs and charges incurred in defending the suit aforesaid, and, being so liable, assumed to pay the same. There is another Cotuit, ior money had and received. On a trial, upon the plea oí non assumpsit, the Jury found for the plaintiff the sum aforesaid and interest; subject to the opinion of the Court on a case, stating, in substance, that Turner ordered the defendant to take the said negroes in execution ; that he did so; and, the sale thereof being forbidden, the defendant demanded a bond from Turner, which was given, the slaves sold, the money received from the plaintiff, and paid over to Turner; and that the plaintiff bought the negroes aforesaid, knowing all the circumstances of the title of the party, who afterwards recovered them.

The Superior Court adjudged the law to be in favour of the plaintiff; from which judgment the defendant appealed.

The Court is clearly of opinion that, under the true construction of the Act concerning Sheriffs, (Rev. Code, vol. 2d., p. 160,) the Sheriff having received the bond of indemnity, was bound to sell the slaves in question. Unless he was so bound, the giving of the bond by the creditor would be a vain ceremony. He is not only so bound, but he is sheltered from any action by the party claiming the negroes, unless the obligors in the bond prove insolvent, by the express provision of the 3d section. This Act was made for the ease and relief of the Sheriff, and exonerates him from his common law liability in case of illegal seizures, and from the measures previously ^necessary to be resorted to, to ascertain the property of the goods seized; we mean, in all cases in which the sale is forbidden, and the bond contemplated by the Act is given. It does not, however, injure the rights of the claimants of the property; for it interposes other and sufficient defendants, to satisfy their claims, and holds the Sheriff himself also liable, in the event of proving insolvent. This view, however, is merely in relation to the rights of the original claimants of the property. It is in exclusion of that of the present Appellee. He stands only in the shoes of a purchaser of property at a Sheriff’s sale, and can only go against the Sheriff, for damages, on the .ground of an express or implied warranty of the title of the negroes sold, in consequence of being evicted. The Court will not stop to inquire whether the present form of action is adapted to a recovery in favour of the Appellee, being- clearly of opinion that he is not entitled to recover against the Sheriff in any form of action.

However the question of warranty may be, in the case of sales made by Sheriffs prior to the Act in question, or in cases not coming within it, no warranty can be implied in the case before us. The Declaration of the Appellee, itself, makes a case under the Act, and in which the Sheriff was bound to sell, whether the negroes belonged to the defendant to the fi. fa., or not. We cannot say, therefore, that the Sheriff impliedly warranted the title of the slaves in question. The Appellant has only done what he was bound to do; he has broken no faith with the Appellee; he has duly paid over to the creditor the money he received from the Appellee, and has, certainly, neither contracted in law, or equity, to refund it. Whatever redress the Appellee, therefore, may be entitled to, it is not against the Appellant. We are, therefore, unanimously, of opinion that the judgment is to be reversed, and entered for the Appellant.  