
    Alexander Wingo, Sheriff, vs. Spencer Brown.
    
      Demurrer — Pleading—Promise—Assumpsit.
    Upon demurrer, the Court will give judgment against the party whose pleading was first defective in substance.
    In an action of assumpsit, it is not enough to allege the facts upon which the law raises an implied promise — the promise itself must be alleged or the declaration will be fatally defective.
    Assumpsit against a purchaser at sheriff’s sale to recover the amount of Iris bid. The declaration stated the advertisement, offer for sale ; that defendant was the highest bidder at a certain amount; that he refused to comply; that the land was re-advertised at his risk, again offered for sale, and there was no bidder ; wherefore defendant became liable to pay; but contained no allegation that defendant promised to pay. Held, that the declaration was bad in substance.
    BEFORE WHITNER, J., AT SPARTANBURG, AUGUST, EXTRA TERM, 1859.
    Tbe declaration was as follows:
    And for that whereas, heretofore to wit: On the day of •, in the year of our Lord, one thousand eight hundred and fifty-six, the said A. Wingo, Sheriff of the District and State aforesaid, by virtue of a writ of fien facias to him directed, from and by the Court of Common Pleas of said District, legally advertised, and on sales-day in January, ‘ 1856, exposed to public sale, for cash, a certain tract of land in the District aforesaid, on the waters of , containing twentjr-nine acres, more or less, bounded by lands belonging to W. M. Rhodes and others, as the property of one James N. Rhodes, at the suit of R. Bowden, Ordinary, and the said Spencer Brown, the defendant, became and was legally the purchaser of said land, being the highest bidder for the same, to wit, for the sum of one hundred and seventy dollars, and afterwards, to wit, on the day of at, &c., refused to comply with the terms of said sale, which said terms were for cash; whereupon the said A. Wingo, Sheriff as aforesaid, the plaintiff, according to the provisions of the Act of the Legislature of this State, in such case made and provided, then and there re-advertised and exposed the said land again for sale on the next sales-day thereafter at public outcry and at the risk of the former purchaser, the said Spencer Brown; at which said second offer of sale, to wit, on sales-day 'in February, 1856, there was no bid made by any one for said land, whereby the said Spencer Brown, by reason whereof, and by virtue of the Act of the Legislature aforesaid, in such case made and provided, then and there became, and was, and still is, liable to pay to the said A. Wingo, Sheriff and plaintiff aforesaid, the further sum of one hundred and sixty dollars, with interest thereon from the day of February, 1856, &o.
    The plea was as follows:
    And the said Spencer Brown, the defendant, by Bobo, Edwards & Carlisle, his attorneys, comes and defends the wrongs and injury, when, &c., and says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that the land supposed to have been bid off by him was purchased by the said James M. Ehodes on the day of , 185-, at public outcry, at a sale ordered by the said E. Bowden, Ordinary of Spartanburg, at and for the sum for which judgment was obtained in the case, by virtue of which the levy and sale referred to in the declaration of the plaintiff was made; that the said E. Bowden believing that a sale under that execution by the sheriff would confer a good title on the purchaser, ordered the sheriff^ A. Wingo, the plaintiff, to levy on said land as the property of James M. Ehodes, and sell the same, and the sheriff being under the same impression, did levy, advertise the same, and put it up to the highest bidder, and the same was bid for by the parties believing that the purchaser would get a good title and run it up to its full value : whereas it appears that all the parties were mistaken, that the said James M. Ehodes had no title to the land whatever, and afterwards, to wit, on the day of , 185-, the money due to the said E. Bowden, Ordinary, upon his judgment, was paid to him by one William Ehodes, and he made titles to the land in dispute to him, the said William Ehodes, and this he is ready to verify; whereupon the said defendant prays judgment of the Court, whether he is bound to pay his bid in the premises, and the plaintiff can maintain his action thereof against him, &c.
    To which plea plaintiff demurred generally, and defendant joined in demurrer.
    Whitner, J. This case was heard upon demurrer to defendant’s plea, who, when sued by sheriff for purchase money, agreed to be- paid for a-tract of land, sold at sheriff’s sale, alleged by special plea, that the defendant in execution had no title to the land in question, and that the debt secured by the bond had been in fact subsequently paid by another.
    The demurrer was sustained.
    The defendant appealed, and now moved this Court to reverse the judgment of the presiding Judge, on the. ground:
    Because the defendant’s plea was a good defence in law to the plaintiff’s action, as James M. Ehodes, whose land was sold, had no title whatever; it was sold and purchased by mistake of all the parties, and the judgment was paid, and titles made by the Ordinary to a third party, as appears by the plea.
    Bolo, for appellant,
    cited JBerlemont vs. Sharp, 2 McC. 264; 
      .State vs. Youngue, 6 Eicb. 323 ; Utters vs. Utters, MS. 1859 ; 2 Bail. 623.
    
      Sullivan, contra,
    cited 2 Bail. 412; 6 Eicb. 323; 2 Hill, 403.
   Tbe opinion of tbe Court was delivered by

Wardlaw, J.

The demurrer to the plea has been argued, but under the established rule that the Court, upon the argument of a demurrer, will give judgment against the party whose pleading was first defective in substance, the Court has looked through the whole pleadings submitted to it. The plea is loosely and carelessly constructed, exhibiting much disregard of technical precision; but the declaration, framed with more care, omits one important clause, and the omission appears to the Court substantial. The- action is assumpsit: the declaration sets forth the circumstances which, under our Act of the Legislature, made the defendant — highest bidder át a former sale, who refused to pay according to his bid— liable to pay the sum lost by an attempted re-sale; but it states no promise of the defendant. Now, a promise or contract is of the very gist of an action of assumpsit; and usually it is laid by the use of words equivalent to the Latin assumpsit, promisit or agreavit. There have been cases where, after verdict, the seeming omission' of the express promise has been held not fatal; as in Mountford et al., vs. Horton, 5 Bos. & Pul. 62, where the statement that the parties agreed was held to contain it; and. Starkie vs. Cheesman, 1 Salk 128, where the allegation that a bill was drawn, was held to contain the allegation of a promise. But the allegation of a mere legal liability, which in no view can be said to contain a promise conformable to it, will not, in pleading, be the allegation of a promise. The law implies a promise, and proof of the liability will be proof of the promise; but in pleading, tbe statement must be of tbe fact to be proved, and not of the evidence. According to a just theory of tbe action of assumpsit, tbe liability is tbe consideration of tbe psomise ; and where no promise is averred, tbe declaration wants that essential thing, for tbe breach of which damages are claimed. See Bac. Abr. Assumpsit, F.; Winston vs. Francisco, 2 Wash. Va. Rep. 187; Lee vs. Welch, 2 Stra. 793.

It is therefore ordered that tbe demurrer go to tbe declaration, and that judgment be awarded in' favor of tbe defendant.

O’Neall, Withers, Whither, Glover and Muhro, JJ., concurred.

Judgment for defendant.  