
    
      The State of South-Carolina for A. F. Lumpkin vs. A. W. Yongue.
    
    where the proceeding on a sheriff’s bond, is by suggestion after judgment, under the 75th rule of Court, the party coming in can present, for the consideration of the Court, no other rights but his own.
    The neglect of a sheriff to bind a bidder at his sale, by re-selling within the time prescribed by the Act of 1839, is not a matter of which a creditor whose judgment is after-wards recovered, can complain.
    Nor has one who had purchased the land from the debtor, any right to complain of such neglect.
    Where the party filing such a suggestion makes no case which entitles him to go to the jury, the proper order is one to quash the suggestion.
    
      Before Glover, J., at Fairfield, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows :
    “ Judgment having been heretofore recovered on the bond of Alexander W. Yongue, late sheriff of Fairfield, a suggestion was filed for the benefit of Abram F. Lumpkin, and his name was endorsed on the back of the rule served on the defendant requiring him to plead.
    “ The following breaches of the bond were suggested:
    
      “ 1. That A. W. Yongue, sheriff, received the 7th February, 1844, $2,650, by virtue of sundry writs of fieri facias, at the suits of Gladden & McCrary, Robinson & Caldwell, Troy Lump-kin & Nicholas A. Peay vs. Thomas Lumpkin, which money the sheriff refused to pay over to said plaintiffs.
    “ 2. That the writ of fieri facias in the case of N. A. Peay was delivered to A. W. Yongue as sheriff; that he collected a large amount from the proceeds of the sale of Thomas Lump-kin’s property ; that after paying older executions he had money enough in his hands to satisfy N. A. Peay’s execution, and that he neglected to pay over the same to N. A. Peay.
    “ 3. That by virtue of an execution at the suit of Troy Lump-kin, A. W. Yongue sold a tract of land to James Cathcart, a responsible person, for $2,650; but intending to injure Troy Lumpkin in his lifetime and his executrix, M. Lumpkin, since his death, did not collect the purchase money from Cathcart, and did not re-sell the land as by law he was required, but afterwards advertised it for re-sale, and got Jeremiah Cockerell, his successor in office, to re-sell said land, which was bid off-by one W. Pickett, an insolvent person ; that Cockerell afterwards re-sold the land to John Mobley for $835, and Troy Lumpkin and his executrix failed to get the money due on the execution.
    “ 4. That by virtue of an execution in favor of one Thomas Betts, A. W. Yongue then being sheriff, sold a tract of land, the property of Thomas Lumpkin, to James Cathcart, for $2,650; that A. W. Yongue, having no instructions from the plaintiff in execution, neglected to re-sell the land as by law directed, and Cathcart was discharged from liability for his bid, and that thereby E. Garden and M. Lumpkin, administrators of the goods and chattels of Thomas Lumpkin, have sustained loss, &c.
    “5. States sale of land to Cathcart and re-sale, &c. That Thomas Lumpkin conveyed the land to Abram F. Lumpkin, who held it subject to the payment of Thomas Lumpkin’s debts; that besides said tract of land, considerable other property was conveyed by Thomas Lumpkin to Abram F. Lumpkin, subject to the payment of his debts; that to save the other property in his possession, Abram F. Lumpkin was compelled to pay sundry execution creditors of Thomas Lumpkin, in particular N. A. Peay, and this was owing to the negligence of A. W. Yongue; and that loss was thereby sustained by Abram P. Lumpkin.
    “6. That A. W. Yongue, as sheriff, received enough money on N. A. Peay’s execution to satisfy it; that the said execution was assigned to Abram F. Lumpkin, and that A. W. Yongue refused to pay this money to him as assignee, as aforesaid.
    “ 7. That A. W. Yongue, by his default in discharging James Cathcart from his bid, failed to make the money and to satisfy the execution in favor of N. A. Peay.
    “ 8. Same as last breach ; and that Abram F. Lumpkin is the assignee of N. A. Peay, &c.
    “ In obedience to executions entered in his office in favor of James B. Betts and others against Thomas Lumpkin, the defendant, then being sheriff of Fairfield district, levied upon a tract of land as the property of Thomas Lumpkin, and exposed the same to sale on the 5th February, 1844. The land was bid off by James Cathcart for $2,650. On the afternoon of the day of sale, the defendant directed lames S. Stewart, his clerk, £ to enter the bid to James Cathcart, and if William Pickett should pay the money he would make titles to him.’ William Pickett paid $700 on the bid the 7th April, 1844. The terms of sale not having been fully complied with, Jeremiah Cockerell, the successor in office of A. W. Yongue, re-sold the land the 4th November, 1844, to William Pickett for $2,000, who failed to comply with the terms of sale, and Jeremiah Cockerell re-sold again, 3d February, 1845, to John Mobley for $835, who paid the amount of his bid and received titles.
    
      “ Jeremiah Cockerell also sold a negro, the property of Thomas Lumpkin, for $390, the 3d March, 1845. The judgment in the case of N. A. Peay vs. Thomas Lumpkin was signed 22d April, 1844, and the fi.fa. entered in sheriff’s office 25th April, 1844.
    
      “ The execution of a conveyance was admitted from Thomas Lumpkin to Abram F. Lumpkin for this tract of land, with a general warranty, dated 2d March, 1843, in consideration of five thousand dollars. It was also admitted that all the executions against Thomas Lumpkin are now satisfied, except the one in favor of N. A. Peay, which was assigned by N. A. Peay to Abram F. Lumpkin.
    
      “ It did not appear that A. W. Yongue received from the sale of Thomas Lumpkin’s property, or otherwise, money applicable to the satisfaction of N. A. Peay’s execution. But the complaint of Abram F. Lumpkin, assignee, is, that the defendant, A. W. Yongue, has not made the amount of James Cathcart’s bid by a legal re-sale, and that he is liable for the difference between the bid and the sum of $700 paid him and $835 received by J. Cockerell, on the re-sale to Mobley.
    
      “ On motion of the defendant’s counsel, a non-suit was granted, with leave to plaintiff in suggestion to move to set it aside.
    “ The judgment in the case of N. A. Peay vs. Thomas Lump-kin, under which plaintiff claims as assignee, was not entered and signed till 22d April, 1844, which was after the levy and sale by the sheriff, A. W. Yongue, on the land hid off by James Cathcart, and no lien was created in favor of said judgment upon said land ; and it appeared to me that the non-feasance of A. W. Yongue, in failing to comply with the provisions of A. A., 1839, respecting a re-sale, would not be such a breach of his official bond as the plaintiff in this suggestion could allege, under the practice recommended in the Treasurer vs. Bates and established by the 75th rule of Court. Nor, in my opinion, can Abram F. Lumpkin recover in this proceeding under the allegation, that he claims to hold the land by virtue of a release from Thomas Lumpkin, prior in date to Peay’s judgment and execution. If he be a purchaser for valuable consideration, his action should be trespass to try titles against John Mobley, who purchased at Cockerell’s re-sale and is now in possession ; otherwise, the title to real estate might be tried by a rule which dispensed with the ordinary imparlance.
    “ The counsel for the plaintiff insisted, that the administrators of Thomas Lumpkin had sustained loss by the neglect of A. W. Yongue to re-sell according to law, and that under the 4th breach suggested they are entitled to recover the difference
    
      between the amount of James Cathcart’s bid and $> 1,535, the sum paid by Pickett and Mobley. But I apprehend, that although the 75th rule of Court permits ‘ any one who may conceive himself aggrieved by the misconduct of the sheriff’ to come in and suggest such a breach as may meet his case; yet that where (as in this case,) a suggestion is filed in behalf of one person and his name alone endorsed on the 30 day rule, he shall not be permitted to allege and prove breaches of which other persons and not he might complain.”
    The plaintiff appealed.
    
      Boyce, for appellant,
    cited 2 Strob. 222; 3 Strob. 306; 4 Rich. 15 ; 2 Bail. 363; 2 McM. 323, 327.
    
      Thomson, Buchanan, contra,
    cited 11 Stat. 27; 4 Rich. 206; 1 Strob. 331; 5 Strob. 160.
   The opinion of the Court was delivered by

Whitner, J.

The proceeding by suggestion under our rule of Court, was intended to secure a ready and consistent remedy against defaulting sheriffs. In such a proceeding, however, although conducted in the name of the State of South-Carolina, the party for whose benefit it is prosecuted must also appear. There is, in this case, an apparent complication, from the introduction of other interests than those truly represented by the record. This Court can only regard the case made by A. P. Lumpkin, in his own behalf — he cannot be permitted to espouse the cause of others, however well grounded their complaints.

As the assignee of the judgment of N. A. Peay, or as a purchaser previous to the sale by sheriff, he claims a recovery for an alleged default of this officer.

For the purposes of this inquiry it may be conceded, that this plaintiff has succeeded to all the rights of N. A. Peay as a judgment creditor, and that Yongue, the defendant, was in default, according to the requisition of the A. A. 1839, in not having resold the land on the same or next succeeding sale day. In what way was Peay aggrieved by this official default, committed anterior to his judgment? If the purchaser had complied with his bid, or if the land had been resold at his risk and the difference paid, the existing judgments would have been satisfied and the residue returned to the defendant in execution, Thomas Lumpkin. The parties to be affected, therefore, by this transaction, and consequently, entitled to complain, were the defendant in execution and the creditors claiming the proceeds of the sale, neither of whom is before the Court. If it be true, then, that an exact compliance with the law, whether by the bidder, or by the sheriff, could not have operated beneficially to this plaintiff, I do not perceive how the alleged official delinquency of the sheriff, can be held to have been prejudicial to him. An attempt to trace consequences so remote, would admit a range of inquiry that must at last end in conjecture, and lead to no satisfactory result.

As well might a creditor, whose suit had not been instituted, seek a recovery because of loss resulting from the depreciation of the property of his debtor, from some casualty or the-fluctuations of trade, which might have been avoided if some delinquent sheriff had previously cleared his office of existing executions by sales at an earlier day. The fact that this plaintiff has stepped into the shoes of a subsequent judgment creditor, long after all the occurrences of which he complained, has at least not strengthened his right to the remedy sought.

As a purchaser at private sale anterior to the sale by Sheriff Yongue, the plaintiff can address himself to this Court by way of suggestion with as little success. By deed for a valuable consideration with a general warranty, it is said, he had acquired a title to this land. When he shall choose to contest, with the subsequent purchaser at sheriff’s sale, his title to the land, or to seek a recovery on his warranty, against Thomas Lumpkin, his legal remedies arising from these sources can be inquired into. To one or the other, it would seem, a law Court must refer him.

This Court concurs entirely with the Judge on circuit, that a case was not made on the part of the plaintiff with which to go to the jury. This being a suggestion, after judgment already recovered, on a sheriff’s bond, under the 75th rule of Court, as a matter of practice it has been considered, that a better order would have been to quash the proceeding. The same end having been attained in this case, the motion is dismissed.

O’Neall, Wardlaw, Frost, Withers and Glover, JJ., concurred.

Motion dismissed.  