#### *James H. Cobb vs. Geo. W.*Pressly, *Sheriff.*

1. A sheriff cannot recover, (in an action of assumpsit) from a purchaser at sheriff’s sale, for property purchased, where the purchaser is the owner of the execution in his office entitled to a preference from the proceeds of sale, unless he can shew that a part of the money arising from the sales was applicable to the payment of his costs, and then only tire amount of his costs.

2. When one being the owner of an execution, under which the sheriff sells, purchases property at the sheriff’s sales, upon an action of assumpsit against him by the sheriff for the amount of his bids, he cannot avail himself by way of discount of the amount of his execution in the sheriff’s office, altnough his execution is entitled to the preference in the sales.

*Before*Richardson, J., *at Abbeville, Spring Term,*1842.

This was an action of assumpsit to recover three hundred and thirty dollars, the price of a slave and cow bought by the defendant at the plaintiff’s sale for cash, by authority of executions against John Riley. It was admitted that the defendant was the assignee of a case in which William B. Hill was the plaintiff against Riley, and thus, although there were junior executions, the money when received should be applied to the defendant’s execution. It was also admitted that no rule had been made against the sheriff, but the money was claimed by a junior execution creditor. The defendant filed a discount under which he claimed the proceeds of the sale, as applicable to the senior execution, and insisted that as the money would, if paid by him to the plaintiff, be applied to the execution of which he is as-signee, the plaintiff should not be permitted to recover against him. The presiding Judge was of opinion, and so held, that the plaintiff was entitled to recover, and thus the matter of the discount could not avail the defendant. The court also held that as the sale was for cash, the plaintiff was entitled to recover interest on the price for which the property sold.

The defendant appeals, *on*the grounds annexed *to*this report.

1. Because his Honor the presiding Judge held that the defendant’s discount is inadmissible, and thus the matters' therein stated could not avail the defendant in the form of law.

*4172. Because his Honor held that the plaintiff was entitled to recover interest from the time the property was sold to the defendant.

Burt <fe Thompson, for the motion. Perrin, contra.

Curia, *per*

O’Neall, J.

We all agree that the defence of the defendent, *as a*discount, could not be received ; for there was no demand on the part of the defendant against the plaintiff which could be the subject of a cross action. The defendant had the proceeds of the sale of Riley’s goods in his own hands, and if he was entitled to retain he could have no claim against the sheriff. If he had not that right, still until he paid him the money he would have had no right of action on account of it; so that the discount is out of the question, and the whole case is resolved into the inquiry whether the sheriff could recover from the defendant *without shewing that*persons, *other than the*defendant, *toere entitled to receive the money from*him, or that a part of it was applicable to the payment of his costs. It is generally true, that at common law, the sheriff is entitled to demand and receive the proceeds of a sale made by him, and to'bring the money into court. But it is equally true, that when there is no reason for the enforcement of this rule, it ought not to prevail. Indeed one part of it is abrogated by statute. For *now*where there is no conflicting claim to money collected on an execution, the sheriff is bound to pay the same to the plaintiff in execution within ten days after he has received it, if demanded, under a penalty of 50 per cent. Act of 1796, 5 Stat. at Large, 284. *Thomas vs. Yates,*1 McMull. 179. This abrogated the common law rule, that the sheriff was to bring the money into court, in all cases. *That*is his duty now, *only*where there may be conflicting claims. Following up the reason on which the Act is founded, that the plaintiff in execution is entitled to receive his money as soon as the sheriff may collect it; and considering its provision that when paid to him he is bound, at least within ten days afterwards, under a heavy penalty, to pay it to the plaintiff, the inquiry is presented to the mind, why do so senseless and nugatory an act as to make the plaintiff in execution pay the amount of his bid by which he pur*418chased the defendant’s property, to the sheriff'? I can give no satisfactory answer to that question ; and recurring to the reasons on which the action of assumpsit proceeds, I think it is plain, that the defence ought to be sustained. In assumpsit we are fettered by no strict pleading. The plaintiff’s demand, as in this case, that the defendant should pay him cash for property purchased and delivered to him at sheriff’s sale, is fairly met by the answer, “ I am entitled to receive the money from you, and my purchase, so far, extinguishes my claim, and is therefore paid in cash.” if in point of fact the money when received by the sheriff is applicable to other debts, then, of course, this shewing at once destroys the defence. That the sheriff cannot be prejudiced by this view, is plain. For if the junior creditors sue him for the money, he has only to hold up this execution, under which the defendant claims, and say the money is applicable to it, and the defence is at once made out. If he has a claim for commissions or costs to be paid out of this property, then that may be recovered against the defendant under his purchase. For so far he is not entitled to retain. If the sheriff, when he sold, had refused to deliver the property, until the purchase money was paid, it may be, he might have done so, and it is possible, the defendant would have been without remedy. But after a delivery to the defendant, and consequently by that act the sheriff made himself liable to all the execution creditors for the proceeds, and by which, if it had been to another, the defendant might have demanded his money, and compelled him to pay it, under a penalty of 50 per cent, it would seem to be a self evident proposition, that if the defendant was entitled to the money, he might legally refuse to pay it to the sheriff. The motion for a new trial is granted.

Earle and Butler, JJ., concurred.

Evans and Richardson, JJ. We dissent, because the sheriff has a right to demand the money of every purchaser.