1. A purchaser at sheriff's sale, who refuses to comply with the conrract of
purchase, is liable to an action by the sheriff, and the right to recover the
full price cannot be controverted, if the sheriff, at the time of the trial, has
the ability to deliver the thing purchased, or if that has been placed at the
disposal of the purchaser by a tender. The loss actually sustained by the
seller, is, in general, the true measure of damages when the purchaser re-
fuses to go on with the sale. Lamkin v. Crawford.
..153
2. When the sheriff has re-sold the thing which the first purchaser has re-
fused to pay for, there is an implied contract by the first purchaser to pay
the difference, which is thus ascertained between his bid and the subse-
quent sale; and a count upon a contract to pay the same, is good. Ib. 153
3. Where a sale is made by private individuals, the same rule does not apply,
and in such a sale, to let in a recovery of the difference between the sales,
it must appear that the one last made, was under such circumstances as
will indicate that a fair price has been obtained. Ib...............154
4. There is, however, an exception to the rule, that the sheriff may recover
the difference between the sales, and that is, when the first purchaser is
himself the owner of the property sold, as the defendant in execution, or`
from having purchased it from the defendant in execution, after its lien has
attached. In such a condition of things, the surplus, after satisfying the
execution, belongs to the party purchasing. Ib.......154
5. It is no defence to an action by the sheriff, against a purchaser refusing
to go on with the sheriff's sale, that the thing purchased was not the pro-
perty of the defendant in execution. That is a matter to be ascertained
by the purchaser previous to bidding, and cannot be urged against an ac-
tion for the price. Quere-If relief could not be afforded by the Court
upon a proper application. Ib.
6. "Received of J. & S. Martin $256 97, for a negro boy named Bob, aged
about forty years, which I warrant, &c., given under my hand and seal,
this 19 December, 1841.
S. BOGAN, (Seal.)
Endorsed, "It is further understood, that if the said S. Bogan, shall well
and truly pay to the said J. & S. Martin, the said sum of $256 97, within
four months from this date, the said Bogan is to have the liberty of re-pur-
chasing the said boy Bob. It is also understood, that if the said boy Bob
should die within the said term of four months, he dies the property of the
said Bogan, and the said Bogan in that event, is to be justly indebted to
the said J. & S. Martin, in the said sum of $256 97.
J. & S. MARTIN.
S. BOGAN."
Held, that the legal effect of this instrument, taken altogether, was, that it
was a conditional sale of the slave, with the right to re-purchase. That
the right to the slave vested immediately in J. & S. Martin, subject to be
divested by the re-payment of the purchase money in four months. That
the instrument did not, on its face, import an indebtedness from Bogan to
the Martins, but if the slave died, or if Bogan sold him to a third person,
J. & S. Martin could recover in assumpsit, the amount specified as his
purchase money. Bogan v. J. & S. Martin,...........807
SALES UNDER ORDER OF COURT.
1. The Orphans' Court ordered that an administrator, who made, what was
supposed an imperfect report upon the sale of real estate under its decree,
should be committed, until he made one more perfect; a report was ac-
cordingly made: Held, that the order of commitment, whether erroneous
or not, furnished no ground for the decree which directed the sale. Evans,
Adm'r v. Mathews.
....99
2. An equitable title may be sold under a decree of the Orphans' Court, and
the purchaser will stand in the same predicament, as to title, as the heirs
did. Ib.
tions, and such proceedings had, that the administrator of L. recovered a
judgment for the use of Miller, against the sheriff and his sureties. C. filed
his bill, setting out these facts, insisting that the company was contrived
and set on foot to defraud the public-that the death of L. was merely sim-
ulated, to enable the other parties to carry their fraudulent plans into effect;
that the note yet remained the property of the company, and that in equity,
he was entitled to set off the notes held by him, and to enjoin the collec-
tion of the judgment against the sheriff, as C. would have to reimburse M.
if that was paid. The defendants demurred to the bill for want of equity,
and this demurrer being overruled, admitted all the facts stated to be true,
if they were well pleaded. Held-
1. That suit being in the name of the administrator of L., the notes held by
C. against the company were not legal off sets, and that on this ground
there was relief in equity.
2. That the circumstance that the notes were held by C. when the judgment
was obtained, or suit brought against C. and M. did not take away the equi-
ty, as M. was a surety only.
3. That C. being entitled to his relief sgainst the parties to the judgment at
law, it extended also to defeat the recovery against the sheriff, as without
this, the relief would be of no avail.
4. If the original transaction between C. and the company was illegal, it does
not defeat C.'s right to set off the other bills afterwards procured by him.
5. [Upon the petition for re-hearing.] That although C. might have defeated
the suit at law, by pleading that L. was yet alive, or by showing that the
suit was collusive, and that the interest in the note sued on then belonged
to the company, yet his omission to do so, was no bar to relief in equity.
The suit being in the name of the administrator of L., C. is entitled so to
consider it, and it is no answer to the complainants to say, that by show-
ing another state of facts he could have had relief at law. Chandler and
Moore v. Lyon, et al....
.....35
2. Where a justice of the peace receives money in his official capacity, he
cannot detain it in satisfaction of a debt due him, in his private capacity,
or when sued for its recovery, plead a set off against it. Lowrie v. Stew-
art,
..163
3. R. being indebted, by an open account, to an incorporated Rail Road
Company, the latter assigned the debt to one S., to whom the Company was
largely indebted, and by whom suit was brought against R., in the name
of the Company, and a judgment obtained thereon. Pending the suit
against him, R. paid for the Company a large debt, as its surety, which debt
existed previous to the assignment, by the Company to S. Held, that as
the Company was insolvent, at the time of the assignment to S., of the
debt of R., the latter could set off in equity, the money he had paid for the
Company, against the judgment obtained by S. Tuscumbia, Courtland
and Decatur R. R. Co. et al. v. Rhodes.....
4. A set off cannot be pleaded to an action for unliquidated damages, aris-
ing out of the breach of a contract, in refusing to permit the plaintiff to
perform services which he had contracted to perform. George v. Cahawba
and Marion Rail Road Co...
..234
5. When the plaintiff declares in assumpsit on one count for unliquidated
damages, also on the common counts, to which the defendant pleads a gen-
eral plea of set off, upon which issue is taken, and offers evidence to sus-
tain this plea, it is error in the Court to instruct the jury, that the action
was subject to, and could be set off, as the effect of such a charge is to pre-
clude the jury from finding a separate verdict upon the different counts,
which would enable the plaintiff to remedy the mispleading. Ib.....234
6. The assignment of an account by the party to whom it purports to be due,
and testimony that he (having since died) kept correct accounts, does not suf-
ficiently establish its justness to authorize the assignee to set it off to a suit
in equity against him, brought by the person charged with it. Dunn v.
Dunn,...
.....784
7. Although the vendee of land, with whom the vendor has covenanted that
the estate is free from incumbrance, has a right to extinguish outstanding
incumbrances to perfect his title, yet the amount thus paid will not be al-
lowed as a set off in an action for the purchase money, nor will it avail the
vendee at law, under the plea of failure of consideration. Cole, use, &c. v.
Justice,
......793
8. Where the defendants remitted a bill, indorsed by them, to a correspon-
dent house, to whom they were then indebted, with instructions to credit
them in account, and that house procured the bill to be discounted, and
credited the remitters with the proceeds, and advised them of the facts;
these circumstances constitute a sufficient consideration for the indorse-
ment, to enable the correspondent house to maintain an action on the bill,
when subsequently paid by them as indorsers, against the remitters.-
Sheffield & Co. v. Parmlee,
SHERIFF AND HIS SURETIES.
1. The act of 1815, requires the county treasurer to proceed against delin-
quent sheriffs, &c., for the recovery of fines, &c.; consequently it is not
competent for the Court in which the judgment was rendered, to institute
the proceeding against the sheriff, mero motu. Hodges v. The State,...56
2. Where the plaintiff, in a summary proceeding for the failure to pay over
money collected by a sheriff, on a fieri facias, recovers a verdict and judg-
ment for the amount of the damages given by statute, as a consequence of
the sheriff's default, and no more, the defendant cannot object on error,
that the verdict should have been for the amount of the fi. fa. also. Al-
ford v. Samuel.
.......95
3. The sheriff is a mere executive officer, and is bound to pursue the mandate
of the process in his hands, unless otherwise instructed by the plaintiff on
record, or his attorney. But he cannot defend a rule for not making the
money, on the ground that the plaintiff had agreed with the defendant to
set off a debt, when he has received no instructions from the plaintiff or
his attorney to that effect. Crenshaw v. Harrison,
.......342
4. A sheriff who has lawfully seized slaves under an attachment is not liable
in an action of trespass, if he refuse to permit the defendant to replevy them,
although a valid bond, with sufficient sureties may be tendered. Walker
v. Hampton, et al.....
....412
5. A sheriff who has duly seized goods, under legal process, hás a special
property in them, and should provide for their safe keeping. Where a
mode is provided by statute in which this may be done, and the appropri-
ate bond is taken, the officer is relieved from the obligation to keep it; but
where the statutory bond is not offered, he may provide some other custo-
dy-either retain the possession himself, or commit it to a bailee; and if
the bailee execute a bond, it will be obligatory, although the plaintiff will
not be bound to accept it in lieu of the officer's responsibility. Whitsett v.
Womack, use, &c.
6. A bond which the declaration alledged was made payable to a sheriff
did not state in totidem verbis, that he was such officer: Held, that the un-
dertaking in the condition, that the obligors should perform it to the obli-
gee, or his successor in the office of sheriff, sufficiently indicated his offi-
cial character. Quere? Would not the bond be prima facie good, so as to
devolve the onus of impeaching it upon the obligors, though it had omitted
to show who the obligee was, otherwise than by stating his name. Ib. 467
7. Quere? Would a bond taken by a sheriff, who had seized a boat under pro-
cess issued upon a libel in nature of an admiralty proceeding, be void be-
cause he agreed that the obligors might navigate it to a point not very re-
mote, and unlade its cargo, as the master had undertaken to do. Or would
not the obligors be estopped from setting up such an agreement to impair
their obligation? Ib.............
......467
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