
    William G. Davis v. James Hunt.
    To sustain a plea of pendency of a former suit for the same cause, the parties to tbe record must be the same. Plea, to an action at law of former suit depending in Equity, not allowed where complainant in the bill was a different person from the plaintiff in the action, and the latter was a defendant to the bill; although it was admitted, that the action at law was for the benefit of complainant in the bill.
    A continuance will not be granted by reason of the pendency of a suit in Equity for the sal$jl matter, where a plea of such suit would not avail in abatement.
    The bill of particulars is no part of the record. If evidence is offered of demands not contained in the bill of particulars, it may be objected to; but where evidence has been given which fully sustains the count, it is no.ground for nonsuit, that it does not agree with the bill of particulars, which is no part of the count.
    The sheriff is bound to take notice of a judgment of record in his own district, although execution has not been sued out on it: and where he has sold lands under an execution sued out on a junior judgment, it is no answer to an action for the money by the plaintiff in the senior judgment, that ho has paid it to the execution on the junior judgment, without notice of the plaintiff’s prior lion.
    
      ■ Indebitatus assumpsit, for money had received, lies against the sheriff for money, levied under execution at the suit of another person, but to which the plaintiff is intitled by priority of lien.
    The sheriff having sold land under execution, and executed titles to the purchaser, acknowledging by his deed the receipt of the purchase money, is liable as for money had and received, although in fact the money-may not have been paid him.
    
      There is no warranty of title in sales by sheriffs under execution; and in an action against the sheriff to recover the money for lands sold by him under execution, he will not be allowed to show that the title was in fact in the purchaser, in order to excuse himself for not having received the purchase money.
    It is not a ground for avoiding a sale by the sheriff, that the purchaser bought his own land, under the belief that he possessed the oldest lien against the defendant, and would be intitled to the purchase money, . whilst In fact there was a lien prior to his own, of which he was ignorant at the time.
    Tried before Mr. Justice Q’Neall, at Spartanburgh, Spring Term, 1830. '
    Indebitatus assumpsit for money had and received to the use of plaintiff. The bill of particulars was for so much money “ received by the defendant as sheriff in the case of the plaintiff v. Philip and John Weaver.”
    The defendant pleaded the general issue; but on the call of the case, moved for a continuance on the ground, that there was a suit pending in Equity, in which M‘Dowall & Black, who are the real plaintiffs in this action, were complainants, and the present defendant and others were defendants, and in which the cause of action now sued upon was in controversy. His Honor denied the continuance, but gave defendant leave to plead the pendency of the suit in Equity in abatement, which he did. It is not stated in the brief, whether the plaintiff confessed and avoided, or demurred to this plea; but the bill and answer appear to have been given in evidence. The presiding Judge, after hearing argument, overruled the plea on two grounds; first, that the demand was a purely legal one, over which the Court of Equity possessed no jurisdiction: second, that the parties to the record were not the same.
    Under the general issue the following facts were given in evidence. The present plaintiff had obtained a judgment in the Court of Common Pleas for Spartanburgh District against Philip and John Weaver, which was duly signed on the 21st October 1820, but no execution was sued out upon it. Nathaniel Gist also recovered judgment against the same defendants, and it was signed on the 8th November 1820, and a fi.fa. issued thereon. Under this fi. fa. the present defendant, who was then sheriff of Spartanburgh, levied on a tract of land as the property of the Weavers, and at his public sale on the 4th June 1821, sold it to Gist the plaintiff in the execution. There was no evi^euce’ that ^le defendant had actually received the purchase money from Gist; hut he had executed titles for the land to him, and the deed acknowledged receipt of the money. The present action, which was brought to recover the amount of the purchase money at this sale, was not commenced until after the expiration of the defendant’s term of office as sheriff.
    A motion for a nonsuit was made on several grounds, which were afterwards relied on in the Court of Appeals, and which were overruled by the presiding Judge, for the reasons which will be found in the opinion delivered by that Court.
    The defendant offered evidence to shew, that the land did not belong to the Weavers, but to Gist the purchaser, who had bought his own land by mistake, and was inlitled to the price of it; and that defendant had his receipt for it. His Honor excluded the evidence, observing that the sheriff had sold, and Gist purchased, nothing more than the right of the Weavers, whatever that was ; and if Gist had in fact bought land which was his own before, it was his own folly and he must abide the consequences.
    Th'e jury found for the plaintiff; and the defendant now moved to set aside their verdict and for a nonsuit, or new trial, on the following grounds.
    For a non-suit.
    1. That the plea of pendency of a suit in Equity, for the same matter, ought to have been sustained.
    2. That the bill of particulars does not correspond with the declaration.
    3. That there was no proof of notice to defendant of the existence of plaintiff’s judgment, before the money was paid to Gist’s execution.
    4. That the defendant is sued in his private capacity, and the evidence is of an official default as sheriff of Spartanburgh.
    5. That the bill of particulars is for money collected by defendant in the case of William G. Hunt v. Philip and John Weaver, when he had no authority to collect, and did not collect any money in that case.
    6. That a general indebitatus assumpsit cannot be supported by any evidence adduced in this case.
    For a new trial.
    
      1. That under the circumstances, the case ought to have been continued until the suit in Equity was determined.
    2. That the defendant never received any money in the case of William G. Davis v. Philip and John Weaver.
    3. That the presiding Judge erred in rejecting evidence that the Weavers had neither right, title, nor interest in the land sold by defendant.
    4. That the verdict is contrary to law and evidence.
    Herndon, and A. W. Thomson, for the motion.
    Henry, contra.
    
   Harper, J.

delivered the opinion of the Court.

The first ground of appeal is, that “ the plea of pendency of another suit in Equity for the same matter, ought to have been sustained." We agree with the presiding Judge as to the second ground on which his decision rests, that the parties to the two suits were not the same. It is stated, and admitted to be sure, that M'Dowall & Black, the complainants to the bill in Equity, are the real plaintiffs in the present action ; but we are of opinion, that, for the purpose of sustaining such a plea, the parties to the record must be the same. In Saunders’ Treatise on Pleadings and Evidence, p. 17, it is laid down to be no plea, that another action is depending for the same cause, at the suit of another person. In Com. Dig. Abatement, (H. 24.) 7. it is said, that in an action against three, it is no plea that there is another action depending against two of them for the same cause. Nor in debt by two, that the obligation was to three, by whom an action is depending; nor that an action for the same cause is depending against a stranger; nor that a writ for the same cause is depending against others as executors of the same testator.

These cases seem stronger than the present, and support the position that the parties to the record must be the same. It would introduce much uncertainty into legal proceedings that evidence should be admitted to show, that the suit was brought for the benefit of another than the plaintiff on the record. The plaintiff in the record has the legal right of action, and it does not belong to a Court of law to establish a trust, or an equity. In the case supposed by counsel, of the assignee of a bond suing in his own name, and likewise in that of the original obligee, it is plain that such a plea could not be supported. It is a sufficient security to a defendant in such case, that the plaintiff must fail in one of his actions, or that a recovery in one will be a bar to the other. Besides, it is plain from the bill and answer which were in evidence, that the present plaintiff has an interest in the suit. He will be liable to M‘Dowall & Black, to the same amount, if there should not be a recovery against the defendant. He is a defendant to the suit in Equity, and it will be competent to the complainants to apply for an injunction restraining him from receiving the money.

The 2d and 5th grounds for nonsuit, may be considered together. The bill of particulars is no part of the. record. If it be not filed, the defendant may refuse to plead until it shall be filed. If evidence is offered of demands not contained in the bill of particulars, the evidence may be objected to. But when evidence is given which fully sustains the count, it can be no ground for nonsuit, that it does not agree with that which is no part of the count.

As to the 3d ground for nonsuit, we concur with the presiding Judge, that the sheriff was bound to take notice of a judgment entered in his own district. There can be no doubt but that the elder judgment has the prior lien. Effect can be given to this lien only in one of two ways ; either by holding the land still subject to the older judgment, notwithstanding a sale under a younger ; or by holding the sale to be good for all the defendant’s interest in the land, and directing the proceeds to be paid to the elder. In the State v. Laval, 4 M‘C. 336, it was determined, that the sale under a younger execution conveys the whole of the defendant’s interests. It would be to render the lien of the older judgment a nullity, to say, that the sheriff is not bound to take notice of such a judgment, at least when entered in his own district.

The 4th and 6th grounds for nonsuit, and the 2d ground for new trial will be considered together. If authority to that effect be needed, it is said, 1 Bac. Abr. 261, Assumpsit. A. “ that if a sheriff levies money upon a fieri facias, the plaintiff may have an indebitatus assumpsit against him for so much money received to his use.” It is said, that if the plaintiff’s demand against the sheriff arises from a legal liability, the action must be special, and a general indebitatus assumpsit will not lie. This is true. If the demand arise merely from a legal liability incurred by an official act, the action against the sheriff must be special, and his official character set forth. But if the sheriff have money in his hands belonging to a third person, it is immaterial whether it came into his hands by virtue of his office or not. This is not a mere legal liability arising from an official act. He must answer to the owner as any other bailee of money.

It remains to inquire, whether the defendant must be regarded as having in his hands the money of the plaintiff. It is admitted that defendant did not actually receive any money on the sale of the land to Gist. He made a conveyance of the land however, and acknowledged the receipt of the money by his deed. It is supposed that he took a bond of indemnity from Gist. The rule, contended for by the defendant’s counsel, is in general true,, that the action for money had and received will not. lie for that which is only money’s worth. If stock, or a bill of exchange, or promissory note, to which I have title, come into the hands of a third person, I cannot sustain the action for money had and received, though these have an ascertained money value, and are often used for the purposes of money. Such was the case of Nightingal v. Devisme, 5 Bur. 2589, in which money had and received was brought for East India stock.

I think there are cases however, which will warrant me in saying, that if a party have authority to receive money for another and to discharge the demand, and he thinks proper to receive any thing else than money, and does discharge the demand, he will be liable as for money had received. So I suppose it would be if he should discharge the demand without receiving •any thing, provided the demand would be effectually discharged in that way. In the ease of Beardsley v. Root, 11 Johns. 464, an attorney purchased land which was sold to satisfy his client’s judgment, discharged the execution and gave the defendant a receipt ; and he was held liable in an action for money had and received. The case of Floyd v. Day, 3 Mass. 403, cited in the last case, is to the same effect. There an agent to receive money took the debtor’s note, payable to himself, and discharged the note, and he was held immediately liable to his principal as for money had and received. The same principle may be collected from Scott and. others v. Surman and others, Willes, 400. The factors of a bankrupt had sold tar consigned to them, and received payment partly in money, and partly in a debt due by themselves to the purchasers. They were held liable for the whole amount as if they had received money.

The case of Longchamp v. Kenny, Doug. 137, is not inconsistent with this. There the plaintiff had intrusted the defendant with a masquerade ticket to be sold. Lord Mansfield held, that the action for money had and received would not lie for the price, without showing that the ticket had been disposed of. If it was still in defendant’s hands, trover was the proper remedy. Under the circumstances, it was presumed he had disposed of it. But if it had appeared, that defendant had actually disposed of it, although it had been in payment of his own debt, or for a note, or goods, it cannot be doubted, but that the action could have been maintained. In the present case the defendant had authority to receive the proceeds of the sale for the plaintiff; and it was his duty to receive them. He has conveyed the land to the purchaser and discharged him, and the plaintiff has no recourse against him. Whether the defendant received a bond of indemnity, or received nothing, I think he is liable on the principle of the authorities referred to, as for money had and received.

The only remaining ground which it is necessary to notice, is the 3d, for a new trial. As to this there can be no doubt. There is no warranty of title at sheriffs’ sales under execution. Only the defendant’s interest in the land, whatever that might be, was sold in the present instance, and if the purchaser bought his own land, it was his own folly. It was urged in argument that Gist purchased under a mistake, and that according to a recent decision, a mistake even of law, may be corrected. It appears, however, from the Judge’s report, that the evidence was not offered to shew a mistake, but merely to show a title in Gist. And the alleged mistake was, as explained by the counsel in argument, not in supposing that the Weavers had a title to the land, when the title was in fact in himself, but in supposing his own was the oldest judgmeut. But if the matter were properly before us, it is plain that this could not come under the notion of a mistake. He was ignorant whether there were older judgments or not: But this was not mistake. It was his own laches that he did not inquire. On all the grounds, the motion must be refused. 
      
       Lawrence v. Beaubien, decided at Charleston in April last. A copy of this decision could not be obtained in time for publication in its proper place. It will appear among the cases of the next Charleston term. B.
     