#### *R. W. Smith*v. *Elly and Asa Godbold.*

Columbia,

May, 1850.

Where a judgment at law had been enjoined perpetually, and the plaintiff in the judgment had been ordered to account for and pay over *to the*defendant the money which he had received by virtue of sales made by the sheriff, under execution, the plaintiff cannot exonerate himself from doing so, on die ground that, although he had bid on the property of the defendant in execution, sold by the sheriff, no title had been executed, or receipt given by the sheriff for the purchase money; for, where the plaintiff in execution bids off the property of the defendant at a sheriff’s sale, and the money due upon the bid is to be paid to the party, who bids, the bid itself (if the forms and requirements of the law-have been pursued in the sale) is payment.

In this Court, where money has been received by a party, which *exequo et tono*he ought to refund or pay, interest follows as a matter of course; and this whether it has or has not been prayed for in the bill, or ordered by the decree.

*Before*Dargan, Ch., *at*Marion, *February Sittings,*1849.

CIRCUIT DECREE,

Dargan, Ch. The former decree does not vacate or declare void the judgment of Asa Godbold *v.*the complainant, *187but enjoins it perpetually, and orders the plaintiff in the said judgment at law to account for and pay to the complainant in this bill the moneys which he has received by virtue of' sales made by the sheriff under the execution. And this matter of account was referred to the Commissioner, who, at this term of the Court, has submitted his report; to which the defendant, Asa Godbold, has filed exceptions.

The Commissioner reports that the defendant received $20 in cash from the sale of a horse, by sheriff Carmichael. The defendant does not, at this stage of the proceeding, object to the payment of this sum of $20, but excepts, to the report on account of the interest, on this and the other item, which the Commissioner in his account has reported against him.

The question of interest I will consider in the sequel.

It also appears that the sheriff sold, under the defendant’s execution against the complainant, a tract of land containing two hundred and forty-six acres, which was bid off by the defendant, for the sum of $200.

He contends that he is not liable for his bid, because no title has ever been executed, or receipt given by the sheriff for the purchase money; and that, under these circumstances, this cannot be considered a payment to him; and, therefore, does not come within the provisions of the decree, which orders all payments to be refunded by him. This position is not tenable. Where the plaintiff in execution bids off the property of the defendant at a sheriff’s sale, the bid itself (if the forms and requirements of the law have been pursued in the sale) is payment. I mean, of course, a case where the money due upon the bid is to be paid to the party who bids. In such case, the money is already in the pocket of him to whom it belongs. The sheriff would have no right to demand it of him; for no such vain and empty formality would be considered necessary as that the bidder should pay the money into the hands of the sheriff, for the purpose of being immediately paid back to the rightful owner. Asa Godbold, by the very fact of the land being knocked off to him, was a purchaser who had paid the purchase money, and the execution was satisfied, *fro tanto.*

He was *eo instanti*possessed of an equitable title, and it is his own fault if he has not obtained a deed of conveyance from the sheriff. I think, therefore, that this sum of $200 comes strictly within the character of a payment to the plaintiff in the execution, which the decree orders him to refund.

But the defendant, Asa Godbold, further contends, that if he is liable for this bid of $200, and the other payment of $20, he is not liable for interest, and this constitutes the ground of his first exception to the Commissioner’s report. His objection to the payment of interest is three-fold : first, *188because interest ought not to be allowed at all; secondly, jjecause the bill contains no prayer for an account with inter'est j thirdly, because the decree does not in express terras allow it. In regard to the first objection, it will suffice to say, that in this Court at least, where money has been received by a party, which *ex equo et bono*he ought to refund or pay, interest follows as a matter of course. The second and third objections are not without support from English authorities. It would seem, from the cases cited in Daniels’s Practice, pages 439 and 1507, (some of which I have consulted) that th.e Court will not decree interest, unless under very peculiar circumstances, where it is not prayed for in the bill; and further, that in general no interest could be allowed where it was not ordered, or the question of interest reserved by the decree, unless upon a re-hearing.- The practice of our Court, as far as my experience and observation extend, has been different. In bills for account, it is not usual with us to pray for an account with interest. This is implied. And so in regard to the decrees or decretal orders for an account, or where matters of account are referred to the Commissioner ; there is not one case in a hundred, which have fallen under my observation, where there was any express order or direction that the account should be stated with a computation of interest. It is too late to alter the practice of our Courts in this respect, for the purpose of conforming to a rule of English practice, with no very strong or imperative reason to support it.

It is ordered and decreed, that the report of the Commissioner be confirmed.

*Extract of Chancellor Caldwell’s Decretal Order.*

It is therefore ordered and decreed, That the judgment and execution of Asa Godbold, as against Redding W. Smith, be perpetually enjoined, and that it is referred to the Commissioner to ascertain and report how much money was collected and received by the said Asa Godbold, out of the sale of Redding W. Smith’s property, and applied to the judgment and execution, subsequently to the award and rescisión of the said contract; and it is further ordered and decreed, that the said Asa Godbold do account for the amount he received to the plaintiff, and pay the costs of this case.

JAMES J. CALDWELL.

The defendant moved to modify the decree of his Honor, Chancellor Dargan, on the following grounds :

1st. Because his Honor erred in holding the defendant liable to account for two hundred dollars, the price bid for defendant’s land, when no titles had ever been executed for the *189same, and when the said sum was not applied or credited upon defendant’s execution as a payment. t

2. Because his Honor erred in charging the defendant with interest, the same not being prayed for in the bill, not ordered to be accounted for by Chancellor Caldwell’s decree, and ought not *ex equo et bono,*to be charged against the defendant.

*W. W, Harllee,*for the motion.

-, contra.

*Per*Curiam.

This Court is satisfied with the decree of the Chancellor; and it is ordered that the same be affirmed, and the appeal dismissed.

Johnston, Dunkin and Dargan, CO.

*Decree affirmed.*