
    William Davis against Benjamin Murray.
    XTisSy tile négroff’Pi4vdSSSbought S^rthiuegri Heuuiattúsac„ani! roedyffidhaw °r deceit-
    This was an action of assumpsit for had and received, tried before Mr. Justice Smith, at Abbeville, in the Circuit of 18 — .
    The plaintiff’s counsel did not go into evidence, but stated that he would prove that there was an execution against the property of the defendant in the 'hands of the Sheriff, who had levied on a tract of land, and before the oí sale, he had, with the assent of the Sheriff, substituted a negro, who was accordingly sold by the Sheriff, and oi whom the plaintiff became ,the purchaser; that the negro, at the time of sale, was afflicted witli the dropsy, and of little or no value; that this was known to the defendant ; that during the time the Sheriff was exposing the negro to sale, the defendant used every artifice in his power to conceal his true situation, and requested persons who were present and acquainted with the negro’s true situation, to say nothing about it; that under these circumstances, the plaintiff, being ignorant of the negro’s unsoundness, bought him; that immediately on discovering his true situation, he returned him to the defendant, and brought the present action to recover from the defendant the money paid for him to the Sheriff. On this case the presiding Judge determined that the action could not he sustained, and ordered a nonsuit.
    
      MtegafiieuVou Perty,a he Say ijyTawbead1’ "defendant i >ay unite to "oive ifc
    This is a motion to set aside the nonsuit, on the ground that the plaintiff was justly and equitably entitled to recover his money back, and J ' J maintain assumpsit for it against the defendant.
   The opinion of the Court was delivered by

Mr. Justice Cheyes.

The law is settled that Sheriff’s sales are coupled with no implied warrantees. (2 Bay, 169, 170.) I do not mean to say, that a Sheriff’s sale may not be made the instrument of a fraud, which will entitle the person deceived to a remedy against the authors of it,- nor do I mean to say, whether the case stated would or would not constitute such a case. . If the plaintiff has any remedy, the question must be tried in an action of deceit, and not in the present form of action, which can only be maintained where the contract is wholly and clearly rescinded. It has been contended, that this was not a Sheriff’s sale; but the Court has no doubt on the point. Where there are no legal liens on the property, it is the privilege of the defendant to waive the advertisement required by law for his benefit. At i */ least, it is the privilege of the plaintiff and defendant in the suit in which the execution issues, to do so: and it seems, they did waive it in this case. There was no other omission of the forms of a regular Sheriff’s sale; and we, of course, deem this sale regular. Such sales are very frequent, and often produce beneficial effects without impairing legal obligations.

Grimke, Bay, Nott, Cojcoelc, and Johnson, J, concurred.  