
    Brent v. Green.
    January, 1835,
    Richmond.
    (Absent Tuokbr, P.)
    Auction Sales — Statute of Frauds. — Sales at auction, in general, are within the statute of frauds.
    
      Same — Same —Insolvent’s Land —Quaere, —whether a sale hy a sheriff, at auction, of an insolvent debtor’s interest in real estate, under the statute 1 Rev. Code, ch. 134, § 34, is within the statute of frauds ? It seems, that it is.
    Same — Insolvent’s Land — Deputy Sheriff — Signing Memorandum — Statute of Frauds. — In such sale made by a deputy sheriff, he is the agent both of the vendor and purchaser ; and his setting down the name of the purchaser and the price, on the schedule of the insolvent’s effects, by which he mates the sale, is a sufficient memorandum in writing, according to the requisition of the statute of frauds :
    Witness — Competency—Deputy Sheriff. — And in' an action by the high sheriff against the purchaser, to recover the purchase money of the lands so sold by the deputy, the deputy is a competent witness for the plaintiff, to prove the facts.
    A capias ad satisfaciendum, sued out against one Alexander for debt, was put into the hands of Hill, deputy of Brent, sheriff of Stafford, who served it on him; and Alexander, being in custody under the process, took the *benefit of the statute for relief of insolvent debtors, surrendering his effects, as stated in a schedule, among which was the debtor’s interest (an equity of redemption in fee) in a parcel of land in Stafford. Hill, the deputy sheriff (acting, of course, in the name of his principal) advertized the property surrendered in the schedule, for sale at auction, and made sale thereof, pursuant to the provisions of the statute; and Green, being the highest bidder at the sale, Alexander’s interest in the land was cried out to him, at the price of 300 dollars.
    
    Brent, the sheriff, brought an action of assumpsit against Green, the purchaser at the sale made by the deputy Hill, in the circuit superiour court of Stafford, to recover the 300 dollars, at which the land had been cried out to him at the sale. Green pleaded the general issue. And upon the trial, the plaintiff filed exceptions to two-opinions of the court, stating—
    That “this suit was brought by the plaintiff, as sheriff of Stafford county, against the defendant, to recover the price of the interest of an insolvent debtor in a parcel of land, which he had surrendered on taking the oath of insolvency, and which had been offered for sale by the sheriff at public auction, at which sale, as was ^alleged, the defendant became the purchaser; and on the trial, the court, on motion of the defendant, instructed the jury, that the sale of such an interest in land, by the sheriff in manner aforesaid, is within the statute of frauds, and is not binding on the purchaser, unless it be evidenced by some writing signed by him or some person by him authorized. The plaintiff then offered to introduce Hill, the deputy of the plaintiff, who in that character conducted and made the sale aforesaid, as a witness on his part, to prove, that he had offered the interest of the insolvent debtor in the tract of land aforesaid, for sale at public auction; that the defendant was the highest bidder, and the property was struck off to him as purchaser, and so he was declared to be by Hill, the deputy sheriff; that he, Hill, immediately afterwards, wrote down the name of the defendant as the purchaser of the property, together with the price at which it was sold, on the schedule in which the property was mentioned and described, and which he held in his hand at the time he so conducted and made the sale; and that he, Hill, after-wards tendered to the defendant a deed for the property so sold to him, and demanded payment of the price, which the defendant refused to pay. And on motion of the defendant, the court refused to permit Hill to be examined as a. witness to prove the facts aforesaid. To which opinions of the court the plaintiff excepted.
    There was a verdict and judgment for the defendant. The plaintiff applied by petition to this court for a supersedeas to the judgment; which was allowed.
    Harrison, for the plaintiff in error,
    suggested, that a sale made by a sheriff, of the effects of an insolvent debtor surrendered in his schedule for the benefit of the creditor, — a sale in which the sheriff has no interest, but only acts officially, and discharges a duty enjoined on him by law, —-might well be considered as analogous *to judicial sales, which have been held not to be within the statute of frauds; Attorney General v. Day, 1 Ves. sen. 220; Sugd. Daw Vend. ch. 3, ? 3, p. 78. But he did not insist much on this point. An opinion had once been entertained, countenanced by high authority, that sales at auction, in general, were not within the statute; Simon v. Motivos, 3 Burr. 1921, 1 W. Blacks. 599. He was aware, that that opinion had since been questioned and denied; yet, he said, the case of Simon v. Motivos was an authority in point to shew, that, in a sale at auction, the auctioneer must be considered as agent for the buyer as well as the seller, and that his setting down in writing the name of the buyer, the price &c. was sufficient to take it out of the statute ; and this was now well settled by many subsequent adjudications. Coles v. 'Trecothick, 9 Ves. 234; Hinde v. Whitehouse, 7 Bast 558; Emmer-son v. Heelis, 2 'Taunt. 38; White v. Proctor, 4 Id. 208; Kemeys v. Proctor, 3 Ves. & Beam. 57; 1 Jac. & Walk. 350; Sugd. Taw Vend. 76; 2 Stark. Ev. part 4, p. 614. Now, he argued, in the present case, where the title of the insolvent debtor’s land was not acquired by the sheriff by any act of his own, but was vested in him by law,— where he had no personal interest in the subject, but took in his official character for the benefit of the creditor, and was bound by his official duty to make the sale, — the sheriff himself was, in fact, only an agent for the parties in the transaction, not properly a party to the contract; and, even supposing the sheriff could be considered a real party as vendor, yet his deputy who conducted the sale, could only be considered as an agent, who, acting as the auctioneer, was the agent of both the vend- or and the purchaser. The sheriff being party to the action on the record, might for that cause be an incompetent witness; but the deputy having no interest of any kind, was perfectly competent; *and if the facts which he was called to prove were established by his testimony, the provisions of the statute of frauds were complied with, and the sale was binding on the purchaser. He referred to the case of Carrington v. Anderson, 5 Munf. 32, in which it seemed to have been held by this court, that a deputy sheriff who had sold property under an execution, was not a competent witness, in an action brought in the name of the sheriff upon a bond taken to him to indemnify him for making the sale, to prove that in fact the property belonged to the person against whom the execution was issued; but, he said, it did not appear, that the point had been considered; it was not, in truth, the main point in the cause; and it was impossible to reconcile the judgment in that particular, with the subsequent case of Stone v. Pointer, Id. 287.
    Morson, for the defendant in error,
    said, the opinion of lord Hardwicke in the case of the Attorney General v. Day, that a judicial sale of an estate was entirely out of the statute of frauds, had been questioned by chancellor Kent, in Simonds v. Catlin, 2 Caines 64, and whatever might be the merits of that opinion, it had been solemnly decided in Simonds v. Catlin, and again in Jackson v. Catlin, 2 Johns. Rep. 248, 8 Id. 406, that a sale of lands by a sheriff under an execution, was within the statute of frauds, and required a note in writing to make the contract binding. But he maintained, that there was no analogy between what were called judicial sales in England, and the present case of a sale, by a sheriff, of an insolvent debtor’s land surrendered in his schedule, under our statute. The difference was wide and obvious. In the case of a judicial sale (a sale by a master under a decree in chancery) the master was not, like the sheriff selling the estate of an insolvent debtor, the actual vendor: the master only received and reported the biddings, and the court in truth, made the sale, so that until the action of the court, the sale was in fieri *and might be vacated at any time; whereas in the case of the sheriff’s sale, there was no action of any court: the master who conducted a judicial sale was a wholly disinterested person ; the sheriff was the holder of the legal title of the insolvent’s estate, and, in all respects, the uncontrolled vendor: finally, the reason why the judicial sale had been considered not within the statute of frauds, was, that the decree of confirmation was regarded as a consent of record by the purchaser to be bound by the decree; but there was no such reason to take the sheriff’s sale out of the statute. He said, that notwithstanding the dictum (for it was only a dictum) of the judges of the court of king’s bench in Simon v. Motivos, it was now well settled, that sales at auction are within the statute of frauds; Blagden v. Bradbear, 12 Ves. 466; Higginson v. Clowes, 15 Id. 516. And he submitted, that the better authorities, and all the analogies to the adjudged cases, — particularly, the New York cases, — ■ shewed that a sheriff’s sale of an insolvent debtor’s estate, was within the spirit, as it was obviously within the letter, of the statute of frauds. The question then, was, whether, in the present case, the requisitions of the staute of frauds had been complied with? whether the deputy sheriff who conducted the sale, could be considered as a mere auctioneer, and as an agent for the purchaser as well as vendor, and his note made in writing on the schedule, as a note made by authority of the purchaser? He said, it might, indeed, be well doubted, whether the sheriff could act by deputy, in making such a sale: for though the law certainly allowed a sheriff to do all official ministerial acts by deputy, it as certainly required him to perform in person, not only all judicial acts, but all duties specially imposed on him by statute; and sales of insolvent debtors’ estates, and conveyances thereof to the purchasers, were duties which the statute specially imposed on the sheriff. If the sheriff in person could alone make *the sale, the deputy’s sale was wholly void; the present action could not be sustained at all; and the evidence of the deputy, which the court rejected, was plainly inadmissible, and indeed wholly immaterial. But passing by this objection, he insisted, that, if the sheriff could act by deputy in such a case, it must be on the familiar principle, that the sheriff and his deputy, generally, in all official acts done by the latter, are identified ; they are, in contemplation of law, as one person. And then this consequence followed — that the deputy, who conducted the sale in question, standing as vendor in the place of the sheriff, was one of the contracting parties, and therefore could not act as agent for himself and for the purchaser too. For one contracting party could not make a memorandum for the other, to satisfy the requisitions of the statute of frauds: the agent authorized to do this for either contracting party, must be a stranger, a third person between them. Wright v. Dannah, 2 Camp. 203; Cooper v. Smith, IS East 107; Farebrother v. Simmons, S Barn. & Aid. 333; 7 Eng. C. B. Rep. 120. The sheriff being a contracting party here, and the party plaintiff on the record, could not, in the trial of the cause, have been regarded as an agent of the purchaser, authorized to sign a memorandum of the contract for him; nor was the case at all altered by the circumstance, that the sheriff acted not in person but by deputy; for the sheriff and his deputy were one; the acts of the deputy, in every legal view, were, to all intents and purposes, the acts of the sheriff; and the deputy, standing by representation for the sheriff, was a contracting party, and therefore could not act as agent for the other contracting party, the purchaser. The deputy could not be regarded as a third person between the contracting parties; he could not be the agent for the purchaser; especially, as it was not pretended, that there was any express request from the purchaser to that effect. And he cited Carrington v. Anderson, 5 *Munf. 32, as a decision directly in point, that, in a suit brought in the sheriff’s name as plaintiff, where the act of the deputy, as such, was the foundation of the action, the deputy was not a competent witness to prove that the act was regular and lawful; and that, in a case in which,' according to Stone v. Pointer, Id. 287, neither the sheriff nor the deputy had any manner of interest in the controversy.
    
      
       Judicial Sales — Statute of Frauds. — The principal case is cited in Robertson v. Smith, 94 Va. 254, 26 S. E. Rep. 579, for the proposition that judicial sales made by chancery courts though its commissioners are not within the statute of frauds, and are binding upon the bidder or purchaser without any written contract or memorandum of sale signed by Mm, or his agent.
      
        See monographic note on “Judicial Sales” appended to Walker v. Page, 21 Gratt. 636.
    
    
      
      Auction Sales — Auctioneer—Agent of Vendor and Vendee — Signing Memorandum — Statute of Frauds. — In sales at public auction, tbe auctioneer is tbe agent of tbe vendee as well as of tbe vendor, and a note or memorandum in writing of tbe agreement between tbe vendor and vendee, signed by sucb auctioneer or bis clerk, is a sufficient signing witbin tbe statute of frauds, and is binding on both parties. Smith v. Jones, 7 Leigh 170, 30 Am. Dec. 498, citing tbe principal case.
      Tbe principal case is cited and approved in Capehart v. Hale, 6 W. Va. 551; Ralphsnyder v. Shaw, 45 W. Va. 687, 31 S. E. Rep. 956. See Walker v. Herring, 21 Gratt. 678.
      See generally, monographic note on “Frauds, Statute of ” appended to Beale v. Digges, 6 Gratt. 582.
    
    
      
       Witness — Competency—Deputy Sheriff. — Tbe principal case is cited in Wilson v. Alexander, 9 Leigh 461, 465.
    
    
      
      Ingraham’s edi. Philadelphia, 1820.
    
    
      
      Ingraham's edi. Boston, 1828.
    
   BROCKENBROUGH, J.

In the case of Simon v. Motivos, it is said by Burrow, that the judges of the court of king’s bench were inclined to think, “that buying and selling at auctions was not within the statute of frauds;” and in the report of the same case by judge Blackstone, it appears that three of the judges, lord Mansfield, Wilmot and Yates, expressed opinions to that effect. That, however, was not the decision; and, with great deference to the wisdom which then presided in that court, it would have been strange if it had been. The statute expressly declared, that no contract for the sale of goods for ten pounds sterling or upwards shall be allowed to be good, unless the buyer either accept part of the goods sold, or pay earnest money, or unless some note or memorandum in writing of the bargain be made, and signed by the parties to be charged, or their agents thereunto lawfully authorized; and a similar provision, as to the note or memorandum in writing, had been made as to contracts or sales of lands, or any interest in or concerning them. A decision according to the reported inclination of the minds of the judges, would have been equivalent to saying, that a buying or selling at auctions was not, in the one case, a contract for the sale of goods, and, in the other, a contract or sale of lands. The master of the rolls, sir W. Grant, in Bragden v. Bradbear, makes the following judicious observations on that subject: “As to the doctrine, that the statute of frauds does not apply to sales by auction, there is no decision; for ^though in Simon v. Motivos, the judges did express that opinion, the ground of their decision was that the memorandum of the auctioneer answered the requisitions of the statute. Those words are large enough to comprehend every contract by whatsoever preliminary means, whether verbal communication or bidding at an auction, it may have been brought about, and it is not clear to me, that sales by auction are out of the mischief against which the statute meant to guard. From the public nature of a sale by auction, it does not follow that what passes there must be matter of certainty: so far from it, that I never saw more contradictory swearing that in those cases, where attempts were made to introduce evidence of what was said or done during the course of the sale. Though, ordinarily, the terms and conditions are reduced to certainty by a written or printed particular, yet if it is true that the statute does not affect any sales by auction, the whole of the terms might be left to parol evidence, at the hazard of all the uncertainty of perjury, which the statute intended to exclude. I should therefore hesitate to say, the policy of the law does not extend to such sales. Still more should I hesitate to say, the words of the statute, according to the true construction, do not include sales by auction.” A similar opinion is expressed by the same judge, in Higginson v. Clowes, 15 Ves. 515. The decision in Simon v. Motivos, was that the auctioneer must be considered as agent for the buyer, after knocking down the hammer, as well as for the seller, and that his setting down in writing, the name of the buyer, the price &c. was a compliance with the terms of the statute, it being a memorandum in writing, signed by the party, or by some person by him lawfully authorized.

The counsel for the appellant spoke of judicial sales as being out of the statute. These are sales before a master in chancery, under decrees of that court, and are governed by the rules prescribed by the court. It *is said that the judgment of the court takes them out of the statute. Sugd. Law Vend. p. 78; Attorney General v. Day, 1 Ves. sen. 218. If it be true that these sales are properly exempted from the restrictions of the statute, it is surely proper, that that exemption should, be narrowed as much as possible, and that it should be confined to such as are technically judicial sales. But it cannot be pretended, that a sale by a sheriff of an insolvent’s estate is a judicial sale. The sheriff is bound by the law to sell and convey, and he performs these acts without invoking to his aid the judgment of any court whether of law or equity.

The real decision in Simon v. Motivos has been followed by the courts of England to this day. It is true, that in Stansfield v. Johnson, 1 Esp. N. P. Rep. 101, chief justice Eyre expressed his opinion, that it applied to sales of goods only, and he ruled that in a sale of lands the auctioneer was not to be taken as an agent for the purchaser. This distinction was repudiated by lord Eldon, in Coles v. Trecothick, 9 Ves. 249, and in Kemeys v. Proctor, 1 Jac. & Walk. 351, and expressly overruled by the court of common pleas in Emmerson v. Heelis, 2 Taunt. 38, and White v. Proctor, 4 Id. 209. In each of the two last cases, the auctioneer set down the name of the highest bidder in a bill or particular of sale, and the court decided, that this was a memorandum in writing signed by an agent of the purchaser against whom the action was brought. In Emmerson v. Heelis, the chief justice assigns his reasons for saying, that the auctioneer is the agent for the purchaser, in putting his name to the memorandum of the sale. I do not think they are very satisfactory. If it were a new question, I should say, that the auctioneer is the agent employed by the vendor to make the sale, and by the purchaser for crying or proclaiming the last bid, and thereby of declaring him to be the purchaser; and that there his agency ceases, rtnless the purchaser directs him to sign *his name to the memorandum, or assents expressly to his doing so; for the x^arol bargain, and the written confirmation, are separate and distinct acts. But although such is my opinion, yet I consider it as settled law, which ought not now to be disturbed, that the auctioneer is the agent to sign the name of the purchaser, and that he is bound by it. In Kemeys v. Proctor, 3 Ves. & Beam. 57, sir W. Grant remarked, that if the question were open, he should be disposed to say, that the auctioneer is not the agent of the purchaser, but after two consecutive judgments of a court of law (meaning those in Taunton) he should not give a different judgment from theirs, whatever might be his private opinion. And in the same case, Jac. & Walk. 351, lord Eldon said, he could never understand how it was possible to distinguish between an auctioneer being an agent for a buyer of goods under the 17th section, and being an agent for the purchaser of lands under the 4th section, of the statute of frauds, the language of each section as to this matter being the same; but he doubted whether if he had had to decide the question originally, he should have held the auctioneer to be such an agent in either case. In rendering the final decree, he acquiesced in the decisions of the courts of common law.

The counsel for the appellee admits, that the law is as here stated, but he argues that the memorandum in writing cannot properly be signed by one of the contracting parties as the authorized agent of the other; that the agent must be a third person. Eor this position he refers to the cases of Wright v. Dannah, and Farebrother v. Simmons. The first was not a sale at auction: it was a sale of clover seed at the corn exchange in London; the plaintiff was the owner and vendor; he wrote down the name of the purchaser, with the price of each sack of clover seed, and in writing down the price, he made a mistake in the figures; the defendant, the purchaser, overlooked him whilst he *wrote, and desired him to correct the mistake, which he did, and the memorandum was left with the defendant: lord Ellenborough sustained the defence, and remarked, that “the agent must be some third person, and could not be the other contracting party.” The other case was assumpsit by an auctioneer against the purchaser of a lot of turnips ; the plaintiff had himself written down the diflerent biddings. Abbott, C. J., said, “the question is, whether the writing down the defendant’s name by the plaintiff, with the authority of the defendant, be in law a signing by the defendant’s agent. In general, an auctioneer may be considered as the agent and witness of both parties. But the difficulty arises in the case from the auctioneer suing as one of the contracting parties. The case of Wright v. Dannah seems to me to be in point, and fortifies the conclusion at which I have arrived, viz. that the agent contemplated by the legislature, who is to bind a defendant by his signature, must be some third person, and not the contracting party on the record.” The influence of this case on the one before us, I shall presently consider.

Having ascertained, that in ordinary auction sales, whether of goods or of lands, the auctioneer may be the agent of the purchaser to sign his name to a note or memorandum of the sale, I will now inquire, whether in public auction sales, conducted by the officer of the law, such officer may he considered as the authorized agent of the purchaser for a similar purpose. In favour' of such agency, it may be remarked, that the officer is entrusted by the law with the-power to conduct such sales. The seizure and sale of goods, and sometimes of lands, and.interests therein, is a duty imposed on him which he cannot decline: it is not only a compulsory, but often a burthensome and painful duty, for which the compensation received is sometimes a poor equivalent. If an ordinary auctioneer, who discharges, his functions by the authority of the owner of the property, *be a disinterested person, fit to be considered as the agent of the purchaser, much more may the sheriff be so considered. In a sale under a fieri facias, the possession of the' goods is vested in the sheriff, for the special purpose of levying the debt by the sale thereof; and the tie which binds him to the creditor is no stronger than that which binds the auctioneer to his employer. Nor is there any difference, in this respect, between the duty and responsibility of a sheriff who sells under a fi. fa. and of him who sells the lands and estates of an insolvent debtor. It is true, that the statute vests all the estate contained in the schedule, and any other estate which may be discovered to belong to the insolvent, in the sheriff of the county wherein the lands, tenements, goods and chattels, sha.ll lie or be found. But for what purpose are they vested? The same statute answers, that he shall sell them for the best price that can be got for the same, and the proceeds of the sale shall be by him paid over to the creditor of the insolvent. Although the legal title is vested in him, yet it is for the benefit of others. The sheriff himself, then, if he were to conduct the sale, could not be said to be a contracting party, any more than the auctioneer who is vested with the temporary possession of the property sold by him, and might with propriety be considered as the agent of the purchaser. If, however, the purchaser refuses to carry the contract into effect, and the sheriff brings the suit to recover the purchase money, the case of Farebrother v. Simmons applies to exclude the sheriff from being a witness, and probably to exclude the memorandum of the sale made by him, because he is a party on the record. But the same objection does not lie to the evidence of the deputy sheriff, nor to the memorandum made by him, although in fact he may have sold the land, and is liable to the same extent with his principal, to the creditor for the proceeds, and to the insolvent for the surplus. He may be such witness, and the memorandum *made by him may be given in evidence, because he is not a party on the record.

It has been urged, that the case of Carrington v. Anderson is a decisive authority for the exclusion of the evidence of the deputy sheriff in this case. That was an action brought in the name of the sheriff on an indemnifying bond taken under the statute, at the relation and for the benefit of a claimant of property taken and sold by the deputy sheriff, under an execution against the goods of a debtor. At the trial, the deputy sheriff was introduced as a witness to prove, that the goods were really the property of the debtor, and not of the claimant. The relator of the plaintiff moved to exclude him, and the court of appeals in its second resolution, sustained the objection. The court gave no reason for its decision, and it is difficult to understand why the deputy was ruled to be an incompetent witness. The sheriff was merely a nominal plaintiff: he was not even liable for costs: and in the case of Stone v. Pointer, in which judge Roane, speaking for the court, gave a brief but lucid opinion, it was decided, that under the statute, the sheriff was sheltered from any action by the party claiming the property, unless the obligors in the bond should prove insolvent; and that the sheriff gave no implied warranty of the title, so that the purchaser, if evicted, could not recover from him. So that the sheriff was neither liable for costs, nor liable to the claimant of the property except on a contingency, nor liable to the purchaser in any way. The deputy of the sheriff, therefore, could not be interested in the event of the suit, and was clearly competent. It seems to me that the case of Carrington v. Anderson on this point, is not law, and, of course, would not justify the exclusion of the deputy sheriff from testifying in the case now before the court.

I am of opinion, that the judgment should be reversed, and the cause remanded for a new trial, on which the deputy sheriff is to be admitted as a witness, if offered.

*CARR, J.

This case has been well argued. A preliminary question was made by the counsel for the appellee, but not much pressed, — Whether, a sheriff in making sale of an insolvent debtor’s effects, can act by deputy? I think, clearly that he may. He is directed to sell the estate to the best bidder at public sale: but the statute does not oblige him to act in his own person as cryer. He may surely employ either his deputy, or any other person, as auctioneer.

If the point whether sales at auction are within the statute of frauds, was an open question, I should be inclined to think with lord Mansfield and the other judges in Simon v. Motivos, that they are not. They seem to be without the policy of that statute, which meant to provide against private and clandestine sales. But the later cases do not leave the question open; many having decided that these sales are within the statute. But granting that sales at auction, in general, are within the statute, it was said, that a sale like this, conducted by the sheriff, who by the law is directed to sell and convey, is an exception ; that it stands on the footing of judicial sales, which are clearly without the operation of the statute. I feel much doubt as to the position that this can be taken as a judicial sale. Bord Hardwicke says, “the case of purchasers before the master, is certainly out of the statute; nor should I doubt the carrying into execution against the representative, a purchase by a bidder before the master, without subscribing, after confirmation of the master’s report that he was the best purchaser; the judgment of the court taking it out of the statute.” It would seem from this, that it is not what passes before the master, nor his report, but the judgment of the court confirming it, which takes the case out of the statute: and we know, that there is no judgment of any court passing upon the sale made by the sheriff under the insolvent law. Again, in New York, lands are subjected to execution and sale under *a fi. fa. and the courts of that state have decided, that these sales are within the statute of frauds. Passing this then as a doubtful point, let us look further into the case.

Admitting the sale to be within the statute, two other questions remain : ought not the evidence of the deputy sheriff to have been admitted? and if so, does it not shew a compliance with the requisitions of the statute? It is contended, with great ingenuity, that the deputy in conducting the sale, acted as sheriff; that he could only have so acted upon the ground, that in law the sheriff and his deputy are as one person; that, in this view, the deputy was not an agent, but a principal contracting party, and cannot act as the agent of the vendee in making the memorandum, and writing his name; nor can he, the sheriff being the plaintiff upon the record, give evidence in the cause: and authority was cited to shew, that the agent for the contracting parties must be a third person between them. The first case relied on, was Wright v. Dannah. That was no sale at auction, but a private contract, by which Wright, the owner of some clover seed, sold them to Dannah. The seller made a memorandum of the sale; and while he was writing the buyer looked over him, and suggested an alteration, which was made. Suit was brought; and it was objected, that this memorandum was not sufficient to take the case out of the statute, not being signed by the party or his authorized agent. It was insisted on the other side, that the defendant, by overlooking and approving what the plaintiff had written, made him his agent for the purpose of signing the memorandum ; but lord Ellenborough decided, "that the agent must be some third person, and could not be the other contracting party.” The case of Farebrother v. Simmons was that of an auctioneer selling his ■own goods, making a memorandum, and suing on it: Abbott, C. J., said, — “In general an ''‘auctioneer may be considered as the agent and witness of both parties. But the difficulty arises in this case, from the auctioneer suing as one of the contracting parties.” He then cited Wright v. Dannah, as being in point; and said, ‘it fortified the conclusion he had arrived at, that the agent contemplated by the legislature, who is to bind a defendant by his signature, must be some third person, and not the other contracting party upon the record.” How, this seems to me perfectly sound law; its application to this case however, is by no means so clear. That rests upon the hypothesis that the sheriff and his deputy must be taken as one, and so, that the deputy is the plaintiff upon the record, and a principal contracting party. Is it so? Certainly not, in point of fact; for the suit is in the name of Brent, the sheriff, not of Hill, the deputy. The law vests the title of the insolvent’s estate, in the sheriff of the county where the lands &c. lie, that is, in the high sheriff, and directs him to sell at auction, on ten days notice. How is this sale to be conducted? May not the sheriff employ any person he chooses, as his cryer or auctioneer? and what so natural as that he should employ one of his deputies, every day in the habit of selling property under execution? The sale is advertised; that informs the public, that the interest of the insolvent in the property contained in his schedule, is the subject of sale. The legal title to this, the law tells them, is in the high sheriff. The bidders attend: they see the deputy, not the high sheriff, conducting the sale: he holds the schedule in his hand, makes known its contents, and calls on the bystanders to say what they will bid. A. B. and C. bid as they please; and each lower bid is cried till a higher is made; and so on till it is knocked off to the highest bidder; and immediately the cryer sets down upon the schedule, the name of this bidder, with the price he has given, and *declares him the purchaser. Is not all this perfectly plain and fair? Do not the bidders know, that they are dealing, not with the legal owner, but with his agent, the mere cryer? And do they not by bidding make him their agent for the purpose of setting down their several bids? The language of sir James Mansfield on this point, in ijmmerson v. Heelis, is particularly clear and strong: he says, — By what authority does he (the auctioneer) write down the purchaser’s name? By the authority of the purchaser. These persons bid, and announce their biddings, loudly and particularly enough to be heard by the auctioneer. For what purpose do they do this? That he may write down their names opposite the lots. Therefore, he writes the name by the authority of the purchaser, and he is an agent for the purchaser : and it does seem, therefore, that this is a contract signed by an agent for the purchaser, and consequently binding.” If the sale in question here, had been conducted by any body but the deputy sheriff, there could have been no question. I have shewn, I think, that the deputy was nothing but a mere auctioneer. How could he feel that sort of interest in the event of this suit, which should render him incompetent? Every auctioneeer feels as much ; and yet we know, it is a general rule that auctioneers are agents and witnesses for both parties. I think, then, that the circuit court was wrong in rejecting Hill’s evidence. He was not one of the contracting parties; was no party upon the record; and had no such interest as rendered him incompetent. The facts which he would have proved, satisfy fully the requisitions of the statute, and support the sale as a good one.

I think, therefore, that the judgment must be reversed, and the cause sent back for a new trial, with instructions to admit the deputy, if offered, as a witness.

CABELE, J., concurred in the judgment.

*BROOKE, J.

The exceptions taken to the opinions of the circuit court, present two questions — Whether a public sale by a sheriff of the land of an insolvent debtor, according to the provisions of the statute for relief of insolvents, is within the statute of frauds? and Whether the deputy sheriff who made the sale, is a competent witness for the plaintiff, in an action brought by the high sheriff against the purchaser at such sale, to recover the purchase money? It was much doubted in England, for some time, whether sales at auction, in general, were within the statute of frauds. The first case I have seen is Simon v. Motivos; where the court was strongly inclined to the opinion, that sales at auction were not within the statute, though that was not the point decided. The decision was, that, in sales at auction, the auctioneer must be considered as the agent for the buyer (after knocking down the hammer) as well as the seller; and that his setting down in writing the name of the buyer, the price &c. was sufficient to take it out of the statute; that is, was a sufficient compliance with its requisitions. And the law' has been so settled by several subsequent adjudications. The facts stated in the case before us, are entirely equivalent with those of Simon v. Motivos. The land was sold at public auction; the deputy sheriff conducted the sale, and was the auctioneer; the land was struck off to the purchaser; and the deputy, acting as auctioneer, immediately after, wrote down the purchaser’s name and the price, on the schedule, in which it was mentioned and described, and which he all the time held in his hand. Upon the authority of the decision in Simon v. Motivos, and the other cases following that, which have been cited at the bar, X think the requisitions of the statute of frauds were complied with in this case. But I am strongly inclined to think, further, that a sale by a sworn public officer, made in pursuance of the provisions of the law, is not within the statute; that none of the mischiefs ^intended to be prevented by the statute, are to be apprehended in such a case, though the officer should omit to write down the name of the buyer and the price, or to comply with any other requisites of the statute. To me it seems, that the officer is not to be held the agent of the seller and the buyer, but, more properly, the agent or instrument of the law. Judicial sales, under a decree in chancery, are not considered as within the statute, though they be not conducted as ordinary sales at auction must be, to take them out of the statute. This inclination of my judgment has prevented me from taking a more elaborate view of the cases cited at the oar. On the second point, I am equally clear. The deputy sheriff stood perfectly indifferent between the purchaser and the plaintiff, or the creditor of the insolvent, for whose benefit the land was sold, and the suit was brought: and I concur with the other judges, that his testimony ought to have been admitted.

Judgment reversed, and the cause remanded for a new trial, with directions to admit the evidence of the deputy sheriff, if offered.  