NEWBERN,

SEPTEMBER TERM, 1797.

#### Simon Bright *v.*Robert White.

A purchaser of lands under a Sheriff’s sale, cannot sustain an action for money had and received against the Sheriff, upon the ground that the title was bad, and the consideration had therefore failed.

Action on fisc case, for money had and received *to*the Plaintiff’s use ; and the general issue pleaded; and upon *567the trial the evidence was: that *Oram*obtained a judg-meat against *Bright,*the father of the Plaintiff, v\here upon execution issued, and. the Defendant, as Sheriff, sold a tr act of land to the Plaintiff to satisfy it — that the Plaintiff afterwards instituted an ejectment to recover possession, and «there was a verdict and judgment against him ; the Defendant paid over part of the purchase money to *Oram,*and took his receipt; the residue he paid to *Bright,*the Defendant in the action.

Badger, for the Plaintiff,

argued, that although no case precisely in point with the present was to be found in the books, where a Plaintiff under such circumstances, has been held to he entitled to recover; yet certain princi-pies had been established by a number' of decisions, which go the length of warranting the judgment we are now seeking. It is laid down in 1 *Burr.*112, that wherever a person hasu paid money, upon a consideration which happens to fail', or where *ex aequo et bono,*he ought to have his money returned, his action will lie to recover it bark, it is founded in reason and justice. Here the consideration ^has failed, the Plaintiff has not been able to obtain possession of .the land for which he paid his money ; the land belonged to a third person, and not'to the Defendant in the action where *Oram*was Plaintiff. The Sheriff has received the money, and ought to return it. It cannot be denied, that if the Sheriff levies an execution upon the property of a third person, he is liable to that person’s action' — the writ does not authorise a seizure of any property but that of the Defendant’s. — - There is equal reason why he should be liable to the action of the vendee, for* the writ does not authorise him to seli to the vendee any other property than that of the Defendant. He is guiltj of a wrong and deceit to the vendee, if he sells to him the property of any other than the Defendant. Should a private man sell property as his own. which turns out not to be so, he is liable to the, action of the vendee ; and why should not the same law extend to the case of a Sheriff'? With respect to the sale of lands, there are as strong reasons for making the Sheriff responsible, as there are for making «private vendor so. In the latter instance, the buyer may call upon the vendor for an inspection of his title deeds, and the seller has them tó shew : if. the buyer will take reasonable care, he cannot be deceived-; but where a Sheriff sells, he has *568no£ fj,e title deeds ; tie- vendor has no means of getting tlu m for his inspectim — therelnre liie Sheriff should be mrefill not to sell lands the. property of a third prison. He cited 1 *Term 739,,*to prove that the sale of an annuity by ari inv, Hd and void deed, subjects the vendor to an action for the consideration money ; arid also a case from Dallas, to shew that the vendor of lands not his own at the time of sale, is liable to refund the purchase money.. The rule is, that he who is guilty of a wrong, shall take the consequences of it — and it must be admitted, that in seizing- and selling the lands in question, the Sheriff was guilty of a wrong; the consequences whereof have been prejudicial to tin- Plaintiff, who has been drawn in, to part with his money for nothing, and <his Ihrough the misconduct of the Sheriff. Had he not wrongful!} seized and sold the land, the Plaintiff would not have been deceived, nor would have parted with his money as lie did.

*Davie*for Defendant

The principle that lie who has paid money upon a consideration which fails, shall recover it back of the receiver, is a good one ; but it is not to he understood in the latitude the Plaintiff’s counsel assigns to it. He who has received money in. his ow n right and to bis own use, upon a consideration which fails, ought to refund it; and an action to compel him to refund, is sustainable : but if he acts as agent or trustee for another, or as a public officer, and receives the money for a third person, and pays it over, he is not liable to refund. A contrary doctrine would destroy all agencies, attorney-ships, and offices subject to the operation of it. These persons are not benefited by the receipt of the money— they receive it for others — they áre mere instruments, whereby the money is delivered from the hands of one party into the hands of the other ; it is deposited with them for the use of another. The cases cited by the Plaintiff’s counsel, and all other cases upon the same subject, cxlerid only to support the action against a receiver of money to his own use — that was the case cited from *Burrow*— there the Defendant received the money to his owr> use ; that was the ease of the annuity — the D< fetid-ant had received the money to his own ose. The same reiimt k applies to the case from *Dallas.*These authorities ibcrcforeai-e not applicable to the present case, which is that of a Sheriff, who has received money for the Plaintiff in the action. This action cannot be supported by a*569ny adjudication to be found itt the books.; although occasions of'resorting to sucli an action, were it maintainable, have occurred almost every day for hundreds of years. This of ¡'self is a strong argument against the ¡¡resent attempt There, are many cases which decide, that an agent is not liable for monies received to the use of his principal, and paid over before an action commenced against *him*— Butter v. *Harrison, Cowp■*566, is one. I admit the Sheriff is liable to an action, if he levies his execution upon the. pr ¡perty of any other than the Defendant : that is ■ to say. in the case, of personal property. But it is equally true, that lie is not liable for levying on the lands of another than the Defendant; because the lands an*, not to be removed out of the possession of the occupier, and. delivered to the vendee, as personal property is. When lands are sold, the Sheriff does not deliver possession to the vendee — he must obtain that by action or othe> [awful means. The, Sheriff need not even make, a seizure of lands in order to a sale: that was'dec.hb'd some years ago at Halifax, in tlie case of *Baker*and *Long;*and that he need hot deliver possession, was decided in ¡he case of -v. *Nichols,*at Hillsborough. Therefore were the inference correct, that because the Sheriff is liable to a third person, for seizing his goods upon execution against the Defendant, he is also liable to the vendee, which it is not; yet as that .proposition fails in the case of lands, the conclusion must also fail with it — and so the Plaintiff is not entitled to recover.

*Badger*in reply

The rule about refunding when the consideration fails, is laid down generally, and is not in any book where it is to be met with, restrained to the case of money received to one’s own use; and as we profess to be governed by iormer precedents, that rule cannot be now altered to suit this case. There is no hardship in 'subjecting the Sheriff to this action — to do so will make Sheriffs more cautious. When they know that the invasion of another’s property is at their own risk, they will become careful not’to intermeddle with property which does not belong to the Defendant; and then neither strangers to the action, iior vendees, vvill.be involved in difficulties. So the present case, the Sheriff hás nr.nii'"'tiy done wrong, and lite consequences are injimou * die Plain hT. -oíd justice requires a recompence.

*Per curium*

Wxr.MA.MS and Haywooo, Justices..

If a man receive money to his own use and to his own benefit, *570Upon a consideration which happens to fail, he is liable f() ,.ef„n(j • but if he receives it as agent for another, or acting for another, and pay it over, he is not liable to . refund. It may not be so expressly laid down iri any one case in the books, where the receiver to his own use is sued ; but that this is the law, may easily be ascertained by a comparison of the eases, where a receiver to his own use is sued, with those where the Defendant, has been sued as agent, or the like ; the case in *Cowper*decides, that he is not liable when sued as an agent. Another well known case is, where letters of administration are obtained, and the administrator appoints his attorney, wiio receives money and pays to the administrator, and then the letters are repeated and granted to the next of kin, and he sues the attorney — the attorney is not liable to his action — this goes upon the same principle. Another case coming very near the present is, where the executor sells a term for years, which he supposes to be the testator’s, and the vendee is ejected by judgment and sues the executor — he is not liable *;*because be may have paid over the monies to creditors or legatees. *Doug. 654, 656.*The reason of these cases governs that of a Sheriff selling land by virtue of an execution — he receives the money not to his own use, but to the use of 1 he Plaintiff in the action ; when he has paid it over he is not liable ; for if he be, how is he to be recompensed ? He caiinot recover back of the Plaintiff — the Sheriff is.riot bound to warrant the property, for he is not benefited by the money as a private vendor is. No Sheriff, executor, or the like, would ever be safe, were they bound to warrant the property sold. They frequently have not the means of knowing whether the title be good or bad. Their estates would be perpetually in danger. The property sold, might at any distance of time after the sale, be recovered of the vendee or his heirs, and the Sheriff become liable thereby. No man, under such disadvantages, would become agent, executor or Sheriff. The doctrine contended for by the Plaintiff, in the present action, would destroy all such agencies and offices, beneficial as they are, to the public. It does not follow, because the Sheriff is liable to a stranger for selling his personal effects, that he is . also liable to the vendee ; but if it did, the argument fails when applied to lands — the Sheriff is not bound to seize them' — lands do not pass as personal estate does, by sale *571and delivery. Moveables are. seized in order to their delivery. There is no occasion to seize lands for the same purpose — when sold, they need not be delivered to the vendee — the Sheriff ¿arinot expel the possessor and put the vendee into possession — and therefore, the Sheriff is not liable for selling the lands of a stranger to the execution. The dispute lies in such cases,' between the ven-dee and the claimants. The vendee purchases at his own risk. The Sheriff is not subject to the claimant’s action, the conclusion drawn from his liability in cases of personal property fails. We are clear!} of opinion, the present action cannot be sustained. Yerdict and judgment for the Defendant.