
    Robert Elfe, City Sheriff, v. T. N. Gadsden.
    The Sheriff of the city of Charleston is a Sheriff of the State, under the Act of 1839, and his sale book admissible, in evidence, to charge a purchaser at his sale.
    A Sheriff is not bound to resell, before ho can maintain his action for the price agreed upon, against a purchaser at his sale, refusing to comply.
    Tried before Mr. Justice Butler, at Charleston, May Term, 1846.
    Assumpsit for the amount of defendant’s bid at Sheriff’s sale.
    The house and lot that was offered for sale, was situate on Meeting street. The execution—the irregularities of which constitute the main subject of this litigation—reads as follows:
    State of Soutii-Carolina, )
    
      City of Charleston, j
    To Robert Elfe, Esq., Sheriff of the City Court, or any of his lawful deputies. You, and each of you, are hereby commanded, without delay, that of the goods, chattels, houses, and lands, and other hereditaments, and real estates, of John White, within the jurisdiction of the said Court, you cause to be levied the sum of five hundred which Russel & Hall, before the Recorder of the said Court, at Charleston, lately recovered against the said John White, for damages; which they sustained, as well by reason of certain promises and assumptions, by the said John White, to the said Russell & Hall, made and not performed, as for their costs and charges, by them, in and about prosecuting their suit in that behalf, whereof the said John White, convicted, as appears on record. And also, that you cause to be levied the interest upon five hundred dollars, the principal of said debt, from the twenty third day of May, in the year of our Lord one thousand eight hundred and forty-three, the day on which judgment is entered in this case, up to the day on which levy shall be made and satisfaction entered on this execution. And that you have the money before the Recorder of the said City Court, at the Court to be holden at Charleston, on the first Monday in July next, to render to the said Russell & Sass, for their damages, costs, and charges, aforesaid; and have you this writ before the Clerk of the said Court, ten days next before the sitting thereof.
    
    Witness, F. S. Ward, Esq., Clerk of the said Court, at Charleston, the 14th day of May, in the year of our Lord one thousand eight hundred and forty-two, and in the sixty-fifth year of the Sovereignty and Independence of the Uüited States of America.
    Bailey & Beewster, Plaintiff’s Attorneys.
    
    The levy on the execution was made by an acting deputy— Isaac Jones: whether he had been sworn before he entered on the duties of his office, did not appear. He was the generally recognized deputy ofthe Sheriff, and executed an official bond as such. Jos. Sampson; the clerk of the Sheriff, said, he once heard the Sheriff say, that he had not given Jones a regular commission—but did not say whether he had been sworn or not.
    The return sworn to on the execution, was made after the commencement of this action, but the levy in fact had been made before the land was advertised for sale. For the purpose of obviating objections that had been heretofore made on the part of the defendant, and to show that he was not deceived, or mistaken as to the identity of the premises, the advertisement. of sale published in the newspapers, was introduced and admitted in evidence. There was also evidence that the defendant examined the premises, and was not therefore mistaken as to their identity.
    The entry on the execution was as follows:
    “Levied on this day, the defendant’s house and lot, situated in Meeting street, next to the Theatre.”
    Isaac Jones, Deputy.
    
    
      Ninth February, 1843.
    The return was sworn to afterwards very nearly in the same words.
    Whilst the execution was in this state, the lot was offered for sale under it, and the defendant being the highest bidder, it was knocked off to him at 81,000.
    In going home, defendant called at the Bank, and ascertaining that the house and lot was under an incumbrance, for a fire loan, for a larger amount than he had supposed, determined not to comply with his bargain, and subsequently refused to take unexceptionable titles.
    The entry made by the Sheriff in his sales book, was as follows :
    “House and lot of John White, ads. of Russell and Hall, sold to Thomas N. Gadsden, for 81,000.”
    This entry in the book the presiding Judge regarded as a sufficient compliance with the law, especially as it did not appear that there was any ambiguity.
    The advertisement was admitted in evidence, for the purpose of indicating the identity of the property which was offered for sale at the time the defendant was present and made his bid.
    If it had been a new question, he would have had some doubt on one ground taken against the action, to wit: that the Sheriff should have resold the premises before he should be allowed to bring an action against the bidder at his original sale. He felt, however, bound by the authority of Moore and Aiken.
    The annexed grounds of appeal will explain the exceptions that were taken to the execution. He did not think the irregularity such as to affect the rights of purchaser at Sheriff’s sale.
    With regard to Jones’ not having been sworn as a deputy, the evidence was too vague to lead to any definite conclusion.
    The Sheriff having recognized and adopted his acts on the execution, his honor regarded them as legal and valid for the purpose of effecting the sale.
    Under his instructions on the matter of law, which have been adverted to, and which are noticed in the grounds of appeal, the jury found a verdict for the plaintiff.
    The counsel for the defendant excepted to the execution under which the levy was made, first, on the ground of irregularities in the execution itself; namely, that it directed the interest to be on the sum from the 23d day of February, 1813, the “day on which judgment was entered in this case,” when in fact no such judgment had any existence: again, the execution required satisfaction to-be made to Russell & Sass, instead of Russell & Hall, and was also returnable fifteen days before the sitting of the Court, and notin words “according to law.”
    The counsel also objected to the levy as having been made by an unauthorized agent, not commissioned and sworn as the law directs, and also contended that this action could not be maintained by the Sheriff, until a resale was made under the Act.
    The defendant appealed on the grounds,
    1st. That his Honor erred in allowing the Sheriff’s book to be submitted to the jury, together with the advertisement and book of original entry, of which it was not a true transcript, as the entry in the Sheriff’s sales book, unaided by the memorandum and the advertisement, are insufficient under the statute of frauds to bind the party-—-and as no reference in the sales book is made to either the memorandum or the advertisement, it could not be received in evidence.
    2d. That his Honor erred in charging that the irregularities in the execution, and want of regular appointment in the deputy, did not constitute valid objections to the levy, and authority to sell in this case.
    3d. That his Honor erred in charging that the Sheriff could maintain his action without a resale, as is prescribed in the Act of 1839.
    4th. That the verdict was contrary to law and evidence.
    Brown, for the motion.
    The memorandum of one contracting party cannot bind the other contracting party; 5 Barnwell & Alderson, 335. The agent who makes the memorandum must be a third person, and not a party to the contract; 2 Camp., 203. In the case of Moore v. Aiken, 2 Hill, 403, the action was brought for a balance of purchase money. It is therefore not applicable in this case. The Act of 1796 requires the Sheriff to have the property appraised; that of 1798 went further, and requires ten per cent of the purchase money to be deposited, or a resale at the risk of the purchaser. The Act of 1839 orders a resale instantly, or on the next sale day, for noncompliance with terms, by a purchaser; sec. 58, Act of 1839. The memorandum, in this case, did not sufficiently describe the property. The case of Christie & Simpson, 1 Rich., 407, does not aid it.
    Elliott, contra.
    
    The Court will amend an execution to make it conform to the judgment; Giles v. Pratt, 1 Hill, 239; Vance & Davis, v. Wright & Younge, 2 Spear., 91; Towles v. Turner, 3 Hill, 177. The Sheriff must bring the action; see also page 331. The common law right to sell, is still allowed the Sheriff; Roinest v. Linea, 2 Rich., 465. The Sheriff of the City Court has this right. He is not a Sheriff of the State under the Act of 1839. By reference to pages 46, 334 and 335, of the digest of the City Ordinances, it will be found that there is a difference between the fees of the City Court and the other Courts. That its juries may sit longer, the time of testing writs is extended; also the time for taking sureties in cases of trover, &c., showing it to differ in practice in many respects from the other Courts of the State, and from analogy that its sheriff is not an officer of the State.
    Yeadon, contra.
    
    Cited, Elfe, City Sheriff, v. Gadsden, 2 Rich., 73; Christie v. Simpson, 1 Rich., 407. Said the sheriff, in this case, was bound to bring the action; Towles v. Turner, 3 Hill, 178. That clerical errors did not vitiate the execution; Turner v. M’Crea, 1 N. & M’C., 11; Toomerr. Parker, 1 Mill, 223; Williamson v. Farrow, 1 Bail., 611. That the irregularities complained of were merely formal. That to bring the action at once upon the contract, without a resale, was the proper common law mode of proceeding, and that a resale was not necessary; Martin, et al, v. Smith, 6 East., 554; Scott v. Wilson, 1 M’C., 194; and Towles v. Turner, 1 Hill, 178.
    Brown, in reply.
    Insisted that a sheriff of the City Court is a sheriff of the State; Meadows v. Meadows, 3 M’C., 459; 1 Johns. Chan. Cases, 274; Simons v. Catlin, Kane, 66; and that the ten per cent law directs that a sheriff shall resell.
   O’Neall J.

delivered the opinion of the Court.

The first ground of appeal makes the question, whether the sheriff’s sale book, the advertisement and the memorandum book in which the entry was set down, at the place where the sale was made, were properly admissible in evidence under the Statute of Frauds? I confess, were it not for the early decisions to which subsequent decisions have conformed too much to suffer it now to be questioned, I should think that the Statute of Frauds does not cover sales by the sheriff any more than it does judicial sales. But cases of sales by the sheriff now must be considered as within the statute. If the City Sheriff be embraced by the Act of 1839, under the sixth section, there would be no doubt that the entry in his sales book, as was decided in Christie v. Simpson, 1 Rich., 407, would charge the purchaser, and as was decided in this very case, 2 Rich., 373, it might be connected with the levy and advertisement, and in that way establish satisfactorily the identity of the lot sold and purchased. But there is, I confess, some difficulty in so holding. It is manifest that in the former case this was assumed without the point being presented. It is true the City Sheriff is the officer of a corporation, and generally would be regarded as a State officer. But he is the officer of a Court, of which the Judge (the Recorder) City Attorney, Clerk and Sheriff, should all be regarded as officers of the State as well as the city. Be this however as it may, the Act of 1839, as a remedial Act, ought to be liberally construed, and so construing it, I think the City Sheriff may be regarded as embraced in the 2d section. The words are, “every sheriff;” these are comprehensive enough to take in the City Sheriff. That part of the 6th section which relates to the sales book, provides, that “a sale book in which the sheriff shall enter all sales which may be made under any order, decree. execution or final process of any of the Courts of this State, &c., shall be kept.” The words, “the sheriff,” used in it as nomen generalissimum, would embrace the sheriff of the city, and this would be more especially the case when it is remembered that he sells under the execution of the City Court, which is a Court of this State. His sale book is therefore to be regarded as kept under this provision, and as such the entry in it was a proper entry to charge the purchaser. The opinion in this case, when heard last January, held, that this entry could be connected with the levy, and when so connected, made a sufficient memorandum under the statute. The only difficulty which remained, was to decide which of the two houses on Meeting street, next or near the New Theatre, was sold. To remove this ambiguity, it was held that the advertisement could be read in evidence. This, it seems to me, covers all of the first ground which is in any way important. That the original memorandum book was given in evidence, is not, it seems to me, in any wise material; for it is not the sales book, and it is allowable for the sheriff to keep his private memoranda, and from them to make the entry required by law in the official book.

The 2d ground, from Henry v. Ferguson, 1st Bailey, has been so often ruled to be not maintainable, that it cannot be necessary to comment upon it.

The 3d ground presents the question, whether the sheriff can maintain this action without reselling? It is true, the 58th section of the Act of 1839 (p. 57,) does direct the sheriff to resell, if a purchaser fails to comply; but there is no provision, which declares that if the sheriff does not resell, the purchaser shall be discharged from his contract. Unquestionably, this provision for a resale was intended for the benefit of the parties, plaintiff and defendant, and the sheriff neglecting to resell would be answerable to them for the first sale. Still, however, the purchaser’s liability would remain. It has been questioned, whether on any executory contract for the sale of land, the purchase money could be recovered against a purchaser who had not received either titles or possession. But there can be nothing in this notion. For as soon as the purchaser is held to be bound by his contract, and the seller does every thing which he can do, such as a tender of titles and of possession, if he be in possession, he is entitled to recover upon the contract. Recovering upon it, he is entitled to recover by way of damages the whole sum stipulated to be paid with interest thereon. The same rule holds in sales by the sheriff. The case of Seaist, sheriff, v. Twitty, 1 M’Mul., 255, was a case of that kind. The sheriff there sued for and recovered the sum at which the defendant purchased the land-

The motion is dismissed.

Withers J. concurred in the result.

Frost J.

I dissent from the judgment, affirming that the Act of 1839, regulating the office and duties of sheriff, extends to the sheriff of the City Court of Charleston; but I acquiesce in the refusal of a new trial, on the ground, that the evidence admitted on the authority of the former decision in this case, (2 Richardson R., 373,) with the other evidence adduced at the trial, is sufficient to support the verdict.  