State v. Johnston, 2 N.C. 338, 1 Hayw. 338 (1796)

May 1796 · North Carolina Superior Court

2 N.C. 338, 1 Hayw. 338

State v. Johnston.

One bidder at a Sheriff’s sale is sufficient, but the bidder must be one who is iblc to advance the money, wliicli he offers as hi. bid. A return in the name of tne Hi luS..enff by ins U-nnity, if false, will render the Sheriff liaole eriminaliter. Win. u a Defendant h, court, is ordered into custody for a fine, it will be improper to discharge him and order a ji. fa to issue for the fine. The c iurt will no: permit independent facts, for which the party would be iiaole to another prosecution, to be given in evidence, in order to enhance a fine.

Indictment against the Defendant, for that one-recovered a judgment in this court against Howard, and took out execution ; and.put flu- same- into the hands of the Defendant, being High-Sheriff of the county of Ons-low, 10 be executed ; and that he had made return thereupon, that he had levied, but could not sell, for want of bidders ; which was a false return, &c. The judgment was produced on the trial, and also the execution with the return upon it. If was proven that the execution was put into the hands of the Defendant in due time to be ex-ecired; Urn: he delivered it to his Deputy,'who seized goods, and app dnteil a day of sale; that on that day, Hie Plaintiff appeared with an intention to bid for the property, and also ¡mother person, a Mr. Bawsey, who was sent to purchase negroes for his father; that Hie Deputy offered the property for sale, and that ¡he Defendant Howard bid for each article as it was offered, a much higher sum than it was worth ; that such bids were received by the Deputy as good ones — the consequence of which was tlrnt no person present bid higher, in one instance, the PJain’.iffbid, but Howard, ¡he Defendant, immediately hid upon Him a much greater sum than the property was worth; which bid was also received. The Drp.uy returned the execution to tile Defendant, his pi-iump.-ii, requesting him to make a return upon it; winch he accordingly did, as stated in she indictment, via. that the property seized, could not be sold for .want of bidders.

Per curiam, after argument — Wiien bidders cannot be had at a sale advertised by the Sheriff, the usual renirn is, that, the property cannot be «old for want of bidders; which being in the plural number, has occasioned a vulgar error, which unhappily hath formerly been countenanced by some .,f the profession, aod adopted bu-, too generally hy Sheri if; — that there muss b>. two bidder-, at least at a Sheriff's -.ale.' Some, h.sve heid there must be three — the Sncriffis so sell to the highest bidder, and highest, i» in the third degree of comparison. These opinions are founded an very great mistake; if one bidder appears, and no other, tin*. Sheriff ought to sell to him_-Tue sobs,anee of what the Sheriff is commanded todo, is ío ma^e ,,l0U(T mentioned in the execution, by selling the property ; consequently, lfoer. person having the money effers a bid, the Sheriff should sel! to him, and receive the money from him, if no oiber bidder appears; ami if in such case, ¡hr IShera'f ref-urns that he could not sell for want of bidders, rhai return is untrue — but the Sheriff is not to receive the bid of any person who has not the money.. A bid means, an offering of so much money for the property exposed to sale; not the mere verbal saying of the party, that he will give so much — therefore the bid of Harvard, who had not the money, ought not to have been regarded ; he was not a bidder. Should the Sheriff, even after lie «as cried a bid, become satisfied <hat the person making it hath not the money, he should, reject that bid, and sell to that person, who was the highest bidder, having tin- money to pay. It is objected, that a p.'.isnp-d is not liable criminally, for the m.sconduci of his deputy ; that is tr ue, huí here, and indeed, in every case like it, the High-Sheriff c- supposed to make the rein. -i; it is made in his naan, it would not perhaps be good in .-.irictness, were if made otherwise. It is also proven in the presem case, that the return was actually m .deby tin. High Sheriff himself; and though from the representation of bis Deputy, lie might not have known th •,? the return was untrue, yet as lie was a sworn officer, ii was ins ousiness to see that every return made by him was a true on. — it is a» his peril if it prove mb- "Wise — should an objection of ¡ins kind ;>;ev .1, s;« Sheriff could be punished criminaUy for a false return — he might make all bis returns upon the representation of bis Deputy ; and the» he Deputy could not be punished, tor be did n-vt make the return — nor could the High-Sheriff be punished, for he did not know but that the return was true— and thus a Sheriff would lv-we it ie his pow (o give what indulgence he pleased to the debtor, and defeat the eml ami purpose of all law and courts of justice.

The jury convicted him- — then the prosecutor moved to be at liberty to read to the court, the returns upon a great number of other executions ajíída by ¡he. same Sheriff, in order to aggravate the fine,$ and it was m<»ve.d by Jones, Solicitor-General, that the court had in other instances, allowed the character of a Defendant to be shewn by affidavits. in order to enhance the fine.

Per curiam

This has been only done where the matters shewn to the court by way of aggravation, have been relative to the matter for which the Defendant "uadi been convicted, not where they are independent facts for which the party is liable to another prosecution. We will not hear the o her returns read. A iV * days after, the court fined the Defendant 1 n-iy pounds, and ordered him into the custody eflhe Sheriff of New-Hanover, till the fine was paid. Some days after this, an application was made to discharge the Defendant out of custody, as he had not wherewith to pay the fine now with him j and to issue a fi. fa. to the county of Onslow, for the levying thereof — and it was urged, that the court had done so in the case of the Warrenton fines. • ■

Per curium — The proper process to compel payment of a fine, is a capiatur pro fine, which is issued when «he narty is not in court at the time the fine is laid ; but when he is in court, and is ordered into custody, it is like being in custody upon a capias ad satisfaciendum, and then a discharge from them by the PhuntitPs consent, will discharge the party from any other execution : and perhaps should the court now give into the present motion, it may hereafter be said, ihat a ji. fa. was irregular, as his discharge from his present confinement could not have been procured hod th< State opposed it, So the motion was denied. Vide Salk. 56. Co. Inst. 218. Salk. 400. 4 Bl. Com. 368. 8 Rep. 59 b

.Note, — Upon the first point, see State v. Joyce, ante 43.