Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-13
DECISIONS OF TnE SUPREME COURT.
OFFICIAL.
lpiniOns OF the supreme COErt OF fhe state
of Tennessee, at Jackson, April Term,

Opinfons OF the supreme Cozrt OF the state |
of Tennessee, at Jackson, April Term,
1850.
Roberts vs. westbrOok.
This is to u.s. a case Of t. first impression. The |
facts as alleged in the declaration and proved
follows Roberts was constable: and certain exc
eutions were placed in his hands, as SUCH against
Westbrook. Roberts levied the execution on ne
gro girl as the property of Westbrook On the day
Of sale the slave struck off to Jarrett, VIII
was the last and highest bidder, at the price of six
hundred and five dollars. But jarrett the puTehas-
err, refusing to pay the amount of his Did, Roberts
afterwards put up the slave for SALE and esold her
at public auction, to one Adams, who was the last
and best bidder, at the price of five hundred dollars
being one hundred and five dollars less than the
amount Of the bid made by Jarrett; and Adams
having paid the money, the slave was delivered 10
him, as purchaser. Out the five hundred dollars
received from Adams, Roberts satisfied the execu-
tiOn in his hands and returned the same, leaving
surplus, which, it is not denied, was accounted for
to Westbrook. the defendant in the execution
The present suit is brought against the constable
by Westbrook, upon the assumption that 1t was MS
official duty to have compelled Jarrett the first pur-
chaser to have paid for the benefit Of Westbrook,
the defendant in the execution, the sum OF one hun
dred and five dollars the difference between the
amount of his bid and the sum for which the slave
was sold And the Circuit Judge being of this opln
ion, and having instructed the jury on the trial.
verdict and Judgment were given for the plaintiff
TO reverse which the case has been brought to this
Court.
We are aware Of no principle or authority upon
which this action be maintained. The case of
Shaw vs. Smith, 8 YergeF's Rep. 81, is no authority
for the action. That proceeds upon the ground
that the sale was complete by the delivery of the
slaves to the purchaser at the execution sale. In
such case, the officer having mproyidenty parted
with the possession OF the property, it might be
concluded that lie might maintain an action against
the purchaser for the recovery of the price. By
delivery of the property to the buyer without
Id
personally liable for the same; and having had
special property the slaves which he parted with
by the delivery and affirmance of the SALE he may
well he held entitled to for the purchase money
But 1t is contrary to the duty of the officer to
part with the possession of the property until the
money is paid. 1t is incumbent on him by law to
have the money ready to render to the plaintiff in
the execution on the return day of the writ it. by
the exercise of due diligence, this may be done
Hence in case the person to whom the property is
struck off refuses to pay the money, the officer
should set up the properly again, and resell it, in
order that he may be able to fulfill the command of
the writ If he voluntarily neglect to do so, he is
in default.
the money is at the peril of the officer; it is vIo-
lation Of the Judgment creditor, who cannot be de-
layed to wait the tedious process OF suit by the
officer against the purchaser, for the recovery Of
| the money.
IT, then, it be the positive duty of the officer to
sell Immediately failure Of the first bidder pay
the money how is it possible to maintain this action
The refusal Of the first bidder to pay the money in
wolves the officer in default it is matter beyond
his power control. If it be a wrong, it is one
the officer is not to stop have redressed. The ex
tent of his duty such case is to hasten,
as may be, to resell the property and realize the
| money, in obedience TO the command of the writ.
| 1t would be most unreasonable and unjust to hold
that the officer, who in no default and who had
I fully and exactly performed his duty enjoined on
| him by law, should be required 10 take upon him
self the trouble and expense of prosecuting an ae-
ton against the first bidder III like the pres
ent, for the sole benefit of the defendant in the
execution, if it to be admitted that such
an action would lie But we are not prepared to
make this admission. The refusal of the first bidder
| to pay the money, is not treated by the law Il
wrong. so far as the officer is concerned. Instead
of treating it, the law enlons it the officer to
proceed to sell the property again thus waving
the duty of any proceeding by the officer against
the party for his refusal to pay the money. Wheth
| er such refusal can be viewed a legal wrong to
the defendant in the execution is question not ne
| Cessary to be now decided.
To avoid being misunderstood, however it may
be proper to remark, that, inasmuch as there is
pTiUfy between the executive debtor and the first
bidder, If it were to be conceded, that the former
was entitled to redress against the latter it must be
sought through the officer But even upon this con-
cesson, the executive debtor could demand nothing
more of the officer it seems 10 US, than the.mere
use of his name in the prosecution of his suit be
/ CuLuuCteu Dg 1Or his own dement, but
| we are not prepared to admit that the executive
debtor, even in this mode, could entitle himself to
| any address.
The charge assumes enormously think,
that the sheriff or constable is the agent of both
parties, that the sheriff occupies the same relation
! TO the parties auctioneer. This is a mistake.
The eherif IS the ministerial officer of the law the
agent OF the court to carry into effect its judgment
| The line of his duty is washed out by the law. He
acts independently of the parties. They have no
right OF control over him; and so long as he con-
fines himself within the proper scope of his author
| ity, doing in proper manner what he is required
to do by the mandate of the law he cannot be held
answcrable for the consequences, however injurious
they may prove to either party. But for negligent
| or wrongful acts well of omission commits
sion to the prejudice Of either party he is undoubt
! edly answerabe.
We think the charge is also erroneous in applying
to the of execution sales the principle applca-
! bic TO commercial transactions and sales of goods
between individuals, namely that when the sale of
! goods is complete, and the title of the goods has
been properly passed to the buyerif the latter I'M
reasonably refuse to accept and pay for the goods
the latter after notice TO the buyer and after allow
ing reasonable time to eapse, may proceed to re
sell the goods and hold the buyer responsible for the
difference between the original price and the net on
! sum realized in the resale Mcclure VS. Williams.
! . Sneed, Is; Story on Sales Sec. 4O2.
Execution sales of goods are made IN return with
out the participation Of the parties The officer
empowered to sell has discretion. By the stern
! command of the writ he is required TO have the
! money by the return day. Hence he is not to de-
liver the goods to pass the title the person
whom they struck off, until he shall have paid
the money; and if he fail refuse do So the i'm
perative duty of the officer we have seen, is to
put up the property again, and resell it. See Dun
ming VS.. Brown and Barber. Hardin.
Judgment reversed. Mckinney.