#### Jones v. Loftin.

From Lenoir.

A Sheriff having levied executions on the properly o? a debtor, may by the consent of the debtor and the Plaintiffs in the executions, act as the agent of the debtor, and dispose of the property at private sale on credit; and a promise of payment made by the purchaser to the Sheriff, as agent for the Defendant, will enure to the benefit of the latter, and he may have his action thereon, because the acts of the Sheriff' in such case, are not official, but done in his individual character.

The Sheriff having’ in his hands writs of ft. fa. against the Plaintiff, liad levied them on two negroes, took the property into bis possession and advertised it for sale. The creditors at whose suits the executions had issued, were willing that the property might be sold on a credit, and on the day of sale the Plaintiff requested some of his friends, and among’ others the Sheriff, to assist him in finding a purchaser. The Sheriff accordingly offered the negroes to the Defendant for the sum of g>400, at a credit of six months, and the Defendant, after having seen the negroes and made enquiry into their characters, agreed to take them on those terms. It was thought necessary, in order to secure to the 'Defendant a title to the property, that the Sheriff should expose it to publick sale, and after some bidding by others, they were struck down to the Defendant at the price of $>230, not however before he had declared, in answer to a question by the Sheriff', that lie considered himself bound to pay $400 for them whether his bid amounted to that sum or not. There was ,contradictory evidence as to the fact whether the Sheriff was to receive any compensation from the Plaintiff for his services. A few days after the sale, the Defendant brought the negroes to the Sheriff, requesting him to take them back, and alleging that he was do-firanded in the contract; this the Sheriff declinad doing, *200but said he would endeavour to prevail on Plaintiff to take them back; Plaintiff, however, refused to do so. The Defendant then, by the direction of the Sheriff, paid the amount of his hid, $230, took the Sheriff’s bill of sale for the property, which he afterwards sold for $230. It-was proved that the negroes were ’at the time of sale about 45 years of age, and that when the Sheriff made the contract with Defendant, he distinctly informed him that he could give him no information about the negroes, but referred him to one Dunn, with whom Defendant bad some conversation previous to contracting. One of the negroes was sickly in appearance, the other was a remarkably good servant, but indolent. One of the witnesses, Engram, swore that he attended the sale with the view of purchasing, but on examination of the negroes, declined doing so.

The present action was brought to recover the difference between the sum contracted to be paid, and th® amount of the bid.

On the trial below, the presiding Judge instructed the Jury, that unless the Plaintiff was guilty of a fraudulent misrepresentation or concealment, the contract made by the Sheriff as his. agent was a valid one, on which he was entitled to recover, notwithstanding the levy, pub-lick sale, the payment of the sum bid by Defendant, and the Sheriff’s bill of sale. With regard to the fraud alleged by Defendant, the law required of every man, in making a bargain,- to use that precaution which a prudent and diligent man should do $ and if in consequence, of not using such precaution, the Defendant was imposed on, it was his misfortune or his fault, and he was without remedy. One of the negroes was only indolent, and this was not a defect which diminished her value, because it might be remedied by correction. That if there was a latent defect not communicated, and not discoverable by the precaution which !hc. Defendant, as a prudent and diligent man, ought to have used, this circumstance *201should dimmish the amount óf Plaintiff’s recovery, but could not entirely defeat it.

A verdict was rendered for the Plaintiff, and Defendant moved for a new trial; the motion was overruled, and judgment rendered pursuant to the verdict; when'» upon the Defendant appealed to this Court.

fiaslon for the appellant,

contended, that the presen!; Vlainiiti was not entitled to rece ver, because the contract vva.. made- vvitfi another, viz. the shaen?, in whom the ownership of the property was, tpr by the levy, Plaintiff was divested of his interest; and that the sheriff could not he the agent of the Plaintiff ia this transaction — -he was the agent of the law, and the duíísv which would devolve on him as agent of the Plaintiff, were incompatible with she oficial duties of ins pubhek station — (JPclsy m Agemey, passim — í> Ves. 234 — 12 ib. 35¿ — IS ib. IOS — '8 ib. 502.) He further urged, that yubJVi: policy forbade such transactions as the one disclosed in this case, and cited TfaJmunv. Johnson — fihmp. 341 — ñSSoastf Path. 2.) The law requires sales by nheriEk to be at auction, that competition may be excited; bat in this case the law is abuse, the auction is mere form, and the other bidders are imposed on.

Mordecai for appellee.

The charge of the Court below was correct; the property was ia view of the purchaser; there were no latent deíecís iu sí, and the rule is. caveat emplor. As to the objection thai there was no contract between the parties to this suit, lhat fact depends upon the answer to the enquiry whether the Sheriff could bo the agent of the Plaintiff. It is believed he could, because all interested, creditors, Pbúbiff and R? fondant consented that he might so act; hut independent of their consent he might have acted as agent — (14 Job a.;, 467.) Then, if as agent, he contracted, ho was not bound to disclose Ids principal’s name, (though in this case he *202did,) and the principal may maintain an action in his owl! natne> on a contract made with his agent.

It surely is not consistent with publick policy, or the first principles of justice, to permit this Defendant to succeed in his attempt to obtain the slaves of Plaintiff for less than their value, after his contract to pay for them what Plaintiff by his agent agreed to take. Though the law does require sheriffs’ sales to be at auction, yet it is apprehended that the consent of all concerned will render valid a sale by private contract.

Gasten in reply,

argued on the ground of publick policy before taken, and insisted, that in cases of this kind, the consent of those interested was immaterial, and referred to the case of' Eijden v. Jones, determined in this Court.

Hall, Judge.-

In the investigation of this case, upon its own merits and ('ircumstanccs, there is no danger of violating any principle ór rule of sound policy, because what was done was by the consent of all parties concerned ; not only by the consent of the parties to this suit, but by consent of the Plaintiffs in the executions under which the property purchased by the Defendant was sold. The legal progress of the executions was suspended by the consent of all parties concerned, and .what the sheriff then did, was not in his official capacity as sheriff, but in his individual character.

I see notiiing objectionable in the charge of the Court. The Defendant made no enquiry of the Plaintiff relative to the condition of the negroes; nor did he examine them as he might have done. It seems that the witness ling-ram learned their condition from an examination of them. I think the rule for a new trial should be discharged.

Taylor, Chief-Justice

The recovery in this case is resisted on several grounds, one of which is, that the *203promise to pay the price of the slaves, was ¡mule to the sheriff; that the property was vested in him, and divest-cd out of Jones, by the scisure on the execution, But because the sheriff may bring- trespass or trover for the property, it does not necessarily follow that all title is taken from Jones ; for the same actions may be brought by a carrier against a stranger who takes the property out of his possession, or by a factor, pawnee or other person having a special property, each of whom is answer-able for it to the person having the general property. In like manner as the sheriff is answerable to the Plaintiff in the action for the value .of 1he goods seized, and as the Defendant is discharged from the judgment and execution, if goods are taken to tire amount of the debt, it is essential to the. safety of the sheriff, that he should be armed with the means of protecting the properly in his possession. Nevertheless, whatever remains after the debt is paid belongs to the Defendant in the action, who may recover it from the sheriff if it is received by him. Therefore, «pon a sale by the sheriff the consideration moves from him to the amount of the ¿urn which he is commanded to raise; but for the surplus, the consideration moves from the Defendant in the execution, and, consequently, a promise made to the sheriff, as agent for the Defendant in the execution, will enure to the benefit of the latter. The. custom of selling property at auction which is taken in execution, sanctioned as it is by «sage, and 1 believe by some judicial decisions, is, in general, the safest way for all parties, as well as the most likely one to guard against abuses. But when, by the assent of all who are interested in the property, an arrangement can be made to prevent its sacrifice, and ensure a sale for something like the proper value, while there is no rule of law or principle of policy forbidding such a course, it is strongly recommended by justice and humanity ; and its evident effect in this very case, has been beneficial both to creditor and deotor

*204As to the objection arising from the imperfection oí the slaves, there was neither a warranty or a fraudulent concealment; and even a warranty is not binding' where £j)e (]cycc^ js 0|j\ i0Uis, as in the case of a horse with a visible defect; and of a house without roof or windows, warranted as in perfect repair. Here, the unhealthiness of the man was visible in his appearance; and with respect to the indolence of the other slave, the purchaser might have made tn->. necessary enquiries. 1 will not say that tho concealment of some great moral defect ¡nay not be fraudulent, in the seller, hut such an instance does not occur in this case. The verdict and judgment appear to be right.

Henderson, Judge, concurred.