
    
      A. W. Yongue, Sheriff, vs. David Aikin.
    
    Where negroes were bid off at a sheriff’s sale, and the sheriff, having neglected to follow the directions of the 58th see. of the Act of 1839, in relation to re-sales, some months after tendered the negroes to the purchaser, and, upon his refusing to take them, advertised, and re-sóld them, at his risk. Held, that the sheriff could not maintain an action against the first purchaser, either, 1, for a sale and delivery of the negroes; 2, for a sale and refusal to take the negroes and pay the pu -chase money; 3, for a sale, and re-sale at the risk of the former purchaser ; 4-, on the general indebitatus count for goods sold and delivered; or, 5, on the common money counts.
    Where property sold at sheriff’s sale is not delivered to the purchaser, and, after resale, the sheriff seeks to make the first purchaser liable, he must show that the directions of the law, in relation to re-sales, have been complied with.
    
      Before Evans, J., at Fairfield, Spring Term, 1850.
    This was an action of assumpsit, by the plaintiif, as sheriff, against the defendant, who had bid off, for $ 1975, at the plaintiff’s sale, on the sale day, in September, 1844, four slaves, Rhina and her three children, sold, under execution, as the property of one John Ford. The declaration contained five counts : 1, for a sale and delivery of the negroes by the plaintiff, as sheriff; 2, for a sale and refusal by the defendant to take and receive the negroes, and pay the money; 3, for a sale and resale at the risk of the former purchaser, and a claim for the difference; 4, for goods sold and delivered, with a bill of particulars; and, 5, for interest and the common money counts. After the sale, the negroes went back to the plantation of Ford, and remained there under his care, or under the care of N. A. Peay, who had purchased the plantation and a large portion of Ford’s negroes. Peay was a large and the oldest execution creditor of Ford, and it was alleged, on the part of the defendant, but denied on Peay’s part, that the defendant had transferred his bid for Rhina and her children to Peay. The principal part of the evidence was directed, at the trial, to. this point. At the sale day, in October, Peay, denying that such transfer had been made, demanded the money of the sheriff. An interview was had with the defendant, who affirmed that such a contract had been made; Peay denied it, and an altercation took place between them. No further proceedings were had until January, 1845, when Peay brought the negroes to Winnsboio, and a formal tender was made of them to the defendant, who refused to take them : they were then advertised for re-sale, and sold by Cock-rell, the successor of the plaintiff, on the sale day in February, at the risk of the former purchaser, and purchased by Peay for $705. This action was then brought.
    When the plaintiff closed, the defendant moved for a nonsuit, but, at that stage of the case, the re-sale, in February, had not been proved, and his Honor overruled the motion.
    The case was submitted to the Jury, with instructions that, under the second count, the plaintiff might recover the damages actually sustained (if any) by the refusal of the defendant to accept the negroes and pay the purchase money. The Jury found for the plaintiff $1270, with interest from the day of resale.
    The defendant appealed, and renewed, in this Court, his motion for a nonsuit, on the ground, inter alia,
    
    Because the plaintiff, having re-sold the slaves before the commencement of the action, it is respectfully submitted that there was no count in the declaration upon which he could recover, the plaintiff, in the re-sale, not having pursued the provisions of the statute.
    Boylston, for the motion.
    
      Boyce, Dawlcins, contra.
   Curia, per

O'Neall, J.

The plaintiff cannot recover, on the first count, for a sale and delivery of the slaves to the defendant, for the plain reason that the slaves were afterwards re-sold. For, if the first sale (as it is called) was, indeed, a legal and valid one, completed by delivery, then there could be no re-sale. The general indebitatus counts for goods sold, and for money had and received, cannot he sustained; for there was no sale; and there is no pretence that the defendant has had money or money’s worth for the use of the plaintiff. As to the third count, and the proof under it, it is sufficient to remark, that Yongue vs. Cathcart, (3 Strob. 304,) forbids a recovery. The only question is, whether, under the second count, and the evidence, the plaintiff can recover.

That count makes this case, that the plaintiff, as sheriff of Fairfield, had seized in execution, legally advertised for sale, the slaves in question, and offered them for sale, at public auction,' at which the defendant was the highest and last bidder, for the sum of $1975, but that he would not, although often requested so to do, take and receive the said slaves, and pay the purchase money.

Without pausing to notice defects in form in that count, and which were, beyond doubt, the subject of special demurrer, I propose to inquire whether the plaintiff can recover upon it.

I am perfectly clear that he cannot. A sheriff’s sale is for cash. It is his duty to require the money to be paid before he delivers the property. If he chooses to deliver it before payment is actually made, he places himself in this position. He is regarded in law, so far as the plaintiff and defendant in execution are concerned, as having received the money bid, and his only remedy is by action against the purchaser on the sale. But, if there be no delivery to the purchaser, (and that is the point of view in which the re-sale forces us to consider this case,) then the 58th sec. of the Act of 1839, (11 Stat. 37,) points out his course. If he follows it, he will be entitled to recover; otherwise, not. Here, according to the count and the proof, Aiken refused to receive the slaves, which had been, at his bid, struck off to him. When this case was formerly before the Court, (3 Strob. 533,) the only question brought to our view, in considering the competency of John Ford, was whether Aiken’s bid had been transferred to Peay. Now, however, when the record is brought up, and the case is thoroughly sifted, it appears there was a question (the one now before us) antecedent to that.

Turning to the 58th sec. of the Act of 1839, we find that, if the purchaser fails to comply, the sheriff is to re-sell. How? The law says, “ on the same, or some subsequent sale day, as the plaintiff may direct; in the absence of any direction by the plaintiff, the sheriff shall re-sell on the same day, if practicable; if not, on the next succeeding sale, day, making, in every such case, proclamation that he is re-selling at the risk of such defaulting former purchaser.” Yongue vs. Cathcart, (3 Strob. 304.) The plaintiff has not complied with this law, and he cannot recover.

The motion for a nonsuit is granted.

Evans, Frost and Withers, JJ., concurred.

Wardlaw, J.

I agree that, by his neglect to pursue the directions of the Act of 1839, the sheriff lost his right to recover the difference between the bids at his two sales, without any proof of the value of the thing sold. But I do not agree that thereby he lost the right to recover, by a common law remedy, such damages as he suffered from the defendant’s refusal to comply with the contract involved in his bid. The measure of his damages was the difference between the sum bid by the defendant, and the sum which would probably have been obtained, if the sheriff had re-sold, as he should have done. For want of evidence to show the amount for which verdict ought to have been given on the second count, I think there should be a new trial; but I dissent from the order for nonsuit.

Motion granted.  