
    
      Wm. Lewis, Ordinary vs. W. H. B. Richardson, Adm'r.
    
    where a sheriff esposes to sale property levied nuclei' fi-fa., and it is bid off by one insolvent and unable to pay his hid, and the sheriff resells the property, but not within the time prescribed by the Act of 1839 so as to fix liability on the first bidder, for less than the first bid, the execution is not satisfied to the extent of the first hid.
    A decree of the Court of Equity ordering distribution before payment of debts — declaring the property, when delivered to the distributees, liable, in their hands, to levy and sale under execution against the administrator, and directing forthcoming bonds to be executed by the distributees to the administrator, will not excuse the administrator from the payment of the debts — he has his remedy on the bonds.
    
      Before Wardlaw, J., at Sumter, Spring Term, 1853.
    This was an action of debt on the administration bond of Eleanor Spann, administratrix of Charles Spann, jun. The intestate of defendant was one of the sureties. The declaration was on the penalty of the bond, and the first plea was non est factum, on which issue was joined.
    2. Plea. Sets forth the condition of the bond, and pleads performance.
    
      Replication. That the Bank of Charleston, in 1841, got judgment against Eleanor Spann as administratrix, for $ 1,149 27. Thatat the date of this judgment the administratrix had assets to the amount thereof, but on the same day wasted them, and has never paid the judgment.
    
      Rejoinder. That on the 28th January, 1837, a bill in equity was filed by Michael C., Charles C. and James T. Spann, against Eleanor Spann, John R., Caroline M. and Mary N. Spann, all distributees of Charles Spann, the intestate, for partition and account. Partition ordered and confirmed June Term, 1837. But as the administratrix represented that there were debts yet unpaid by the estate, the partition was made upon the terms that the estate to be divided should be subject, in the hands of the distributees, to any judgments or executions which should be thereafter obtained against the administratrix for the estate debts. That complainants and the guardian of the minors should give bond to the administratrix and security for the production of the property allotted to them to satisfy any such judgments.
    That such judgments should have a lien upon the slaves or other property allotted to the distributees, and be subject to be sold by virtue thereof.
    The property was thereupon delivered to the distributees. That afterwards, to wit, in 1841, the Bank of Charleston got judgment as stated by plaintiff, and so did the Inglesbys, and executions were lodged in sheriff’s office for Sumter District. Under them the sheriff sold a tract of land of intestate and the following slaves, to wit: Sampson, Chloe, Sam, Mittey, Winney, Aleck, Hannah, Tiney, Ben, Dick, Sarah, Judy, Ham and Peter, being some of the slaves allotted to the distributees, which were of value more than sufficient to satisfy the said executions. The land was bid off for $10, and the slaves for $3,965, which sum was more than sufficient to satisfy both the executions and costs : — So defendant denies that the administratrix wasted, &c.
    
      Surrejoinder. That ten of the slaves, viz : Sampson, Chloe, Sam, Mittey, Yiney, Ben, Dick, Sarah, Ham and Peter, were bid off at the sheriff’s sale by John R. Spann, jun., for $2,520 ; that John R. Spann, jun., was then, and has ever since been, insolvent and unable to pay his bid, and has never paid it.
    That said ten slaves were afterwards re-sold by the sheriff for $150; that the amount realized from the said sale of the other four negroes, Winney, Aleck, Hannah and Judy, and from the said sale of the plantation and the re-sale aforesaid, and which was applicable and in fact applied to the execution of the Bank of Charleston was $752 57 cents, leaving a balance due on said execution of $734 besides interest. Plaintiff avers that the said $752 57 was all that has been or could be realized on the execution of the Bank of Charleston for and on account of said sales in said rejoinder mentioned.
    
      Rebutter. That the sheriff’s sale of the ten slaves in surrejoinder mentioned at which John R. Spann, jun., became purchaser at $2520 was made on 6th February, 1843, and the resale by the sheriff upon the failure of John R. Spann, jun., to comply with his bid, at which re-sale the slaves brought only $150, was made on 1st November, 1847, and not at the time prescribed by law ; whereby the sheriff became liable to pay to the Bank of Charleston the said sum of $2520 or so much thereof as should be necessary to satisfy their ft. fa., which sum of $2520, together with the proceeds of the sale of the other four slaves in the surrejoinder mentioned, were more than sufficient to satisfy the execution of the Bank of Charleston : Wherefore and not admitting that the said $752 50 in surrejoinder mentioned, was all that had been or could be realized on the execution of the Bank of Charleston for and on account of the sales in the rejoinder mentioned, defendant prays judgment, &c.
    Demurrer, general, and joinder.
    His Honor, the presiding Judge, sustained the demurrer. The defendant appealed on the grounds
    
      1. Because the sheriff was bound to have made a re-sale on the same or the next succeeding sale-day, and not having done so, he was liable for the debt.
    2. Because the sheriff being liable for the debt the administratrix is discharged.
    3. Because the alleged insolvency of the bidder did not authorize the sheriff to dispense with the requisitions of the law, A. A. 1839.
    4. Because the defendant was not bound to allege in the re-butter that the plaintiff in the execution under which the sale was made, had given the sheriff directions to ’:re-selT’'pn the same or some subsequent sale-day to tljaf'p^Wiíiclí'th^sale was made, or that he had given no direptiphs at al3^Ifvtl¡ie plaintiff had given the sheriff directions "nbt tp on the same or a subsequent sale-day, that was ái^exSgjíse of v sheriff had a right to avail himself, and the^same,,o|tg been set forth in the surrejoinder. \ 4v' it to^há' .ve
    5. The demurrer carries us back to the first la'tfff m pleading, and as the plaintiff committed the first fault, the demurrer should have been overruled.
    
      Moses, DeSaussure, for appellant.
    
      Mayrant & Richardson, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case I think the demurrer was properly sustained. The rejoinder was framed in accordance to the precedent settled in the Ordinary vs. Spann, 1 Rich. 429. The plaintiff’s surrejoinder was a full answer to and avoidance of it. For it accounted for and explained away the satisfaction presumed from the levy and sale mentioned in the rejoinder, by setting out that ten of the slaves so levied on and sold were bid off by John It. Spann, jun., who then was, and ever since has been, unable to pay: that the said slaves were afterwards resold and produced $ 150, which, with the balance left, after satisfying older liens, arising from the sale of the other four slaves and the land, made a sum of $752 57 applicable to the execution of the Bank of Charleston, and leaving thereon a balance still due and unpaid. The rebutter repeats the sale set out in the rejoinder, and alleges the re-sale to have been made, after a delay of more than four years, and insists that the sheriff thereby became liable to pay the execution.

This, it is plain, is no answer to the surrejoinder. The sheriff may be, and I dare say ought to be liable for damages for the great delay in making the re-sale, still that does not discharge the administratrix, and consequently her surety, from the obligation to pay the debt of her intestate.

A judgment had been recovered against her for the debt: assets amply sufficient to pay the debt were in her hands. It is true, they were very improperly distributed by the decree of the Court of Equity, which still, however, declared them liable for the payment of the debts, and directed forthcoming bonds to be executed to her. These facts did not excuse her from the payment of the debt. She had her remedy on the forthcoming bonds.

Jt is very true, if John E. Spann, jun., had been able to pay his bid, that this would have discharged the administratrix. For then the sheriff would in law have been charged with the proceeds of the sale, and the debt would have been satisfied. But when his inability appeared, it was plain that no satisfaction was or could have been made.

The motion is dismissed.

Wardlaw, Frost, Whitner and Glover, JJ., concurred.

Withers, J., having been of counsel, gave no opinion.

Motion dismissed,.  