
    
      Lewis O’Bannon, Coronor, v. William Kirkland.
    
    In an action brought by the Coronor against a purchaser at his sale, to recover the difference between a sale and re-sale, the Court refused to admit, in evidence for the purchaser, an untried suggestion of fraud, setting forth that the judgment under which the Coronor sold was fraudulent, and that the sale was for the benefit of the defendant in execution, who had applied for the benefit of the Insolvent Debtor’s Acts.
    A Coronor, in his sales, should pursue strictly the directions of the Act which regulates Sheriffs’ sales; but a sale being advertised for an irregular day, to' which the plaintiff, the defendant in execution and the officer have all assented, cannot work the dissolution of a contract made at such sale by a third person, who has been in no wise affected by the irregularity.
    
      Before Mr. Justice O’Neall, at Barnwell, Fall Term, 1847.
    This was an action brought by the coronor to recover the difference between the sale and re-sale of a slave, Mary, and a colt, sold in the case of Wm. J. Harley v. Berry M. Cave, as the property of the defendant. The slave, Mary, with the defendant’s other property, was advertised for sale by the •coronor, (the plaintiff in the execution, Wm. J. Harley, being sheriff of Barnwell,) on Tuesday. She was accordingly sold, and purchased by the defendant for $200, to whom also the colt was sold, for $18. He was required to comply with the terms of'sale, and failed to do so. The coronor, after waiting more than an hour, re-sold the slave and colt, in the pre•sence of a large number, pretty much the same persons who were present at the sale to Wm. J. Harley — the slave for the sum of $35 and the colt for $9. It is true the coronor, having finished his sales at the Court House, had of course stopped, and was about proceeding to the defendant’s plantation, to ma,ke sale there; but there was no proclamation that the sale was closed, nor was there any evidence of a dispersion of the crowd.
    In the progress of the defence the defendant would have ' given in evidence an untried suggestion of fraud against Berry M. Cave, who had applied for the benefit of the insolvent debtor’s Act, and in which it was charged that the judgment under which the coronor sold was fraudulent, and ■that the sale was also for, his benefit.
    O’Neall, J. I thought that a paper making such an allegation untried, and altogether resting in fiere, was not evidence of any statement in it, and therefore rejected it. The coronór’s sale was legally and properly evidenced by proper entries in his book, kept in conformity with the Act of 1839. I thought the supposed irregularity in advertising could not avail the defendant. So, too, I thought there was no irregularity in the re-sale. The plaintiff had a verdict.
    The defendant appealed, and moved for a new trial, on the following grounds, viz:
    1. Because his Honor refused to admit in evidence a suggestion setting forth that the judgment under which the coroner acted was fraudulent; and also, that at the re-sale .in question by the coroner, the debtor, B. M. Cave, was the real purchaser, as he was the real plaintiff in this case.
    
      2. Because his Honor erred in charging that the sale by the coroner was valid, notwithstanding that it was advertised for and made on Tuesday, without, being advertised for, and without commencing on Monday, and without having been previously announced on Monday.
    3. Because his Honor erred in charging that the re-sale was valid, notwithstanding that the first sale was made under the circumstances above stated, and notwithstanding that the resale was made after the sale had ceased and the crowd had dispersed, (though afterwards called together) and notwithstanding the defendant was too drunk to know what he was about.
    4. Because the verdict was contrary to law and evidence.
    Bellingee, for the motion.
    Owens, A. P. Aldeich, contra.
    
   Warulaw, J.

delivered the opinion of the Court.

One of several specifications in a suggestion filed by one Thomas Pender against the petition of Berry M. Cave, to be admitted to the benefit of the insolvent debtor’s Act, set out that the slave, Mary, and other property of B. M. Cave, had, at the coroner’s sale, been, at the request of Cave, purchased by Harley, for the benefit of Cave, upon secret trust for him, and with a design to defraud his creditors. To this suggestion Cave had not pleaded, although the time limited by the rule to plead had expired, and the suggestion had stood several terms untried, and still stood so on the inquiry docket.— Was this specification evidence in this case? Jf the truth of the specification had been ascertained, and judgment been rendered thereon, that judgment would have been- evidence that B. M. Cave was not entitled to the benefit of the insolvent debtor’s Act. Whether, inter alios, the judgment would have served to establish the truth of the matters alleged in the suggestion, and whether this would be considered a case inter alios, we need not inquire. There was no judgment, only a default to plead. Whatever disadvantage that default may subject B. M. Cave to, on the trial of the suggestion, he must endure. But before trial there is no legal conclusion deducible from the default, which would authorize us to regard the specification as an admission of Cave’s, which might, in another case, be offered against him, and much less -against Harley or the coroner.

The coroner, in his sales, should pursue strictly the directions of the Act which regulates sheriffs’ sales. (Acts of 1839, Sh’ff, sec. 48.) To some extent, no doubt, a departure from those directions, complained of by a party having the right to complain, would affect the validity of a sale. But an irregularity which the plaintiff and defendant in execution, and the officer, have all assented to, cannot work the dissolution of a contract made by a third person, who has been' in no wise affected by the irregularity. As a sale made, by consent, on credit, is still a sheriff’s sale, (11 Stat. 18:) so is a sale advertised, by consent, for a wrong day. Even admitting, (which is not decided,) that a sale cannot be regularly advertised for Tuesday, without consent, here Harley and Cave assented to the advertisement of the coroner, and this defendant, Kirkland, has deceived no injury from that act.— To it he was no party.. .Its effect, if any, upon the sale, to' which he was a party, could not have been in any way disadvantageous to him. The re-sale, to which he was a party, was, in itself, regular, and resulted as a consequence from the nontract to which he acceded, when, under the -terms ,prescribed by the Act before cited, he became a purchaser at the sale. The coroner may re-sell on the day of the first sale, or on the next sale day. Here he pursued the former course. All seems to have been done in fairness. The defendant, who, by his bid, prevented another bid of $ 180 from obtaining the negro at the first sale, must abide the consequences of his foolish interference; for there was no evidence of his having been in a situation which would have rendered him unable to contract.

The motion is dismissed.

Richardson, J. O’Neall, J. Evans, J. Frost, J. and Withers, J. concurred.

Motion dismissed.  