[15]*15The opinion'of the Court was delivered by
Hustoít, J.
We are of opinion that there was error in several parts of this proceeding. In the first place, by concealing the names of the persons for whose use the suit was brought.' Scully and others were admitted as witnesses, and without their testimony the plaintiff could not have stirred one step. Admit that Holdship had behaved amiss, it is not true that any or every person could sue him, nor that those who could recover the money and keep it should be witnesses against him. Nor is it true that if Holdship had not complied with his engagement to the sheriff, that any person or every person could sue him for his violation of it. The suit must either be brought by the sheriff, on the privity of contract, or by some person who was injured. Doran is not injured, he gets $4,500 for his property, instead of $2,500. Gray is not injured, he has been enabled to comply with his engagements with Doran, and is relieved from a suit against him on his agreement, which he might have expected, if he had suffered the property to be struck down to another for a sum less than $4,500. It has been stated that there are other creditors, but we have'not either their names or the amount of their debts; for any thing which appeared in this cause, a "large portion of the $4,500 will go to Doran. To be sure the bid'at sheriff’s sale does not cover all, but when the balance comes to Doran it may be reached.
There are some acts so wieked'in themselves, or so contrary to an -express legislative provision, that any person may prosecute the perpetrator, and punish him by indictment; and some, in which any informer may sue in a civil action and recover a -penalty prescribed by'law; but the fact of bidding at a sheriff’s sale is not one of these: it is in the law, a mere breach of contract. The bidder may be sued for the amount of his bid by the sheriff, and be compelled.to pay it, in so'me cases, though not always: or he may in some cases, though not in every possible case, be liable for the difference, if the land is sold a second time and for a less sum. His breach of contract is as great, though the land sells for more at a second sale, and yet in such case he is not liable for-damages, for there are none. It is not therefore the omission to pay, but th,e injury consequent on such omission, which subjects him to damages. The plaintiff must then be, either the sheriff, and he is the proper plaintiff; or if any other can sue, it must be a plaintiff who can prove that he has sustained damage. I do not know any case, except that of a penalty by positive lav/ to an informer, in which a civil suit can be sustained by a person with whom no contract has been made, and who has sustained no injury. In this case there is no pretence of injury to Doran or [16]*16Gray, and no other has sued: and it is immaterial whether they cannot or will not name the person injured. I hope it is the last time a court will sit to inquire and decide for whom it may concern, without knowing whom it does concern, or that it concerns-any one. If it concerns Scully, then he should not be a witness : that he may recover on his own testimony, is what, if it was done in this case, I hope will not be done again.
It has been assumed in this case, that the bidder is liable in all cases for the difference, when the property is sold for less at a subsequent sale; but this is not universally true. There are many cases in which the bidder will not be compelled to pay the price bidden ; he is not bound to do so in any case of fraud in the sale; and whatever will set aside, and does set aside the sale, discharges the bidder from paying the bid, and from paying the difference if sold afterwards for less. There is no ground for the assertion, that in every case the bidder who does not pajr, is liable for the amount of his bid, or for the difference of price, if sold for less: his liability may exist or not exist according to the facts of the case.
As a good deal has been said about the power and duties of the sheriff, and of the highest bidder at a sheriff’s sale of lands, and as the decisions and dicta do not exactly agree with each other, I shall notice most of them. .
In 1 Dall. 419, it is said, if the highest bidder is unable to pay, the sheriff' may make an offer to the next highest: And if the property is not paid for after sale, the return should be, “that the property was knocked down to A B for so much, — that said A B has not paid the purchase money, and that therefore the property remains unsold.” I would infer that the Court meant a demand of the bidder must be made; how otherwise could it be ascertained that he was unable to pay.
In Vastine v. Fury, 2 Serg. & Rawle, 426, it is decided, that a purchaser of land at sheriff’s sale is bound to pay only when the sheriff is ready to deliver his deed. That a purchaser from whom the money had not been demanded, and who had neglected to pay the sheriff before the return day of his writ, but who, on hearing that it was returned unsold, because he had not paid, immediately went and tendered the money to the sheriff, was not in default, but shall hold the land against the purchaser at the second sale. This ease was fully considered, and for a long time was supposed to have settled the law.
In Smith v. Painter, 5 Serg. & Rawle, 223, the deed was made and rendered before suit was brought against the bidder for the purchase money; and there was nothing said on this subject; but it is there said, a purchaser may be relieved from his bid, if there [17]*17¿any fraud in the sale, but that he ought to apply at the first or ¿geond court.
.’.-In Hart v. Greenough, 7 Serg. & Rawle, 197, the sheriff -hjji.d made and delivered the deed: but in this case the dictum is i^ftst used, that the sheriff may sue fo'r'the purchase money with-cjut-having acknowledged and tendered, the deed: but it is not 'said that this may be done before the return day of the writ.
■ In the cpse of Fridley v. Scheetz, 9 Serg. & Rawle, 156, there jé a dictum, that the sheriff may tend.ed a conveyance and sue the purchase moneys ' y Ik
■ In Negly v. Stewart, 10 Serg. & Rawle, 207, no facts are $lated, except that it appears the money- was to be paid on. a certain day: but the broad positionis stated, that immediately on the property being struck down, the purchaser must pay the money, or .the sheriff may set it up again, and.if sold lower, may charge the first bidder with the difference. This is in direct contradiction of the case of Vastine v. Fury, 2 Serg. & Rawle, 426, and that case -was not cited in the argument or referred to in the opinion. As an universal proposition,, I do not agree to it. The practice in different counties differs greatly as to conducting sheriff’s sales. In some counties the sales are uniformly on the return day of the Writ, or by adjournment, on some day#in the same week, which is always court week: and in such cases "I agree entirely to the case in 10 Serg. & Rawle, 207. But in other counties the sales are uniformly many days or weeks before the return day.
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[15]*15The opinion'of the Court was delivered by
Hustoít, J.
We are of opinion that there was error in several parts of this proceeding. In the first place, by concealing the names of the persons for whose use the suit was brought.' Scully and others were admitted as witnesses, and without their testimony the plaintiff could not have stirred one step. Admit that Holdship had behaved amiss, it is not true that any or every person could sue him, nor that those who could recover the money and keep it should be witnesses against him. Nor is it true that if Holdship had not complied with his engagement to the sheriff, that any person or every person could sue him for his violation of it. The suit must either be brought by the sheriff, on the privity of contract, or by some person who was injured. Doran is not injured, he gets $4,500 for his property, instead of $2,500. Gray is not injured, he has been enabled to comply with his engagements with Doran, and is relieved from a suit against him on his agreement, which he might have expected, if he had suffered the property to be struck down to another for a sum less than $4,500. It has been stated that there are other creditors, but we have'not either their names or the amount of their debts; for any thing which appeared in this cause, a "large portion of the $4,500 will go to Doran. To be sure the bid'at sheriff’s sale does not cover all, but when the balance comes to Doran it may be reached.
There are some acts so wieked'in themselves, or so contrary to an -express legislative provision, that any person may prosecute the perpetrator, and punish him by indictment; and some, in which any informer may sue in a civil action and recover a -penalty prescribed by'law; but the fact of bidding at a sheriff’s sale is not one of these: it is in the law, a mere breach of contract. The bidder may be sued for the amount of his bid by the sheriff, and be compelled.to pay it, in so'me cases, though not always: or he may in some cases, though not in every possible case, be liable for the difference, if the land is sold a second time and for a less sum. His breach of contract is as great, though the land sells for more at a second sale, and yet in such case he is not liable for-damages, for there are none. It is not therefore the omission to pay, but th,e injury consequent on such omission, which subjects him to damages. The plaintiff must then be, either the sheriff, and he is the proper plaintiff; or if any other can sue, it must be a plaintiff who can prove that he has sustained damage. I do not know any case, except that of a penalty by positive lav/ to an informer, in which a civil suit can be sustained by a person with whom no contract has been made, and who has sustained no injury. In this case there is no pretence of injury to Doran or [16]*16Gray, and no other has sued: and it is immaterial whether they cannot or will not name the person injured. I hope it is the last time a court will sit to inquire and decide for whom it may concern, without knowing whom it does concern, or that it concerns-any one. If it concerns Scully, then he should not be a witness : that he may recover on his own testimony, is what, if it was done in this case, I hope will not be done again.
It has been assumed in this case, that the bidder is liable in all cases for the difference, when the property is sold for less at a subsequent sale; but this is not universally true. There are many cases in which the bidder will not be compelled to pay the price bidden ; he is not bound to do so in any case of fraud in the sale; and whatever will set aside, and does set aside the sale, discharges the bidder from paying the bid, and from paying the difference if sold afterwards for less. There is no ground for the assertion, that in every case the bidder who does not pajr, is liable for the amount of his bid, or for the difference of price, if sold for less: his liability may exist or not exist according to the facts of the case.
As a good deal has been said about the power and duties of the sheriff, and of the highest bidder at a sheriff’s sale of lands, and as the decisions and dicta do not exactly agree with each other, I shall notice most of them. .
In 1 Dall. 419, it is said, if the highest bidder is unable to pay, the sheriff' may make an offer to the next highest: And if the property is not paid for after sale, the return should be, “that the property was knocked down to A B for so much, — that said A B has not paid the purchase money, and that therefore the property remains unsold.” I would infer that the Court meant a demand of the bidder must be made; how otherwise could it be ascertained that he was unable to pay.
In Vastine v. Fury, 2 Serg. & Rawle, 426, it is decided, that a purchaser of land at sheriff’s sale is bound to pay only when the sheriff is ready to deliver his deed. That a purchaser from whom the money had not been demanded, and who had neglected to pay the sheriff before the return day of his writ, but who, on hearing that it was returned unsold, because he had not paid, immediately went and tendered the money to the sheriff, was not in default, but shall hold the land against the purchaser at the second sale. This ease was fully considered, and for a long time was supposed to have settled the law.
In Smith v. Painter, 5 Serg. & Rawle, 223, the deed was made and rendered before suit was brought against the bidder for the purchase money; and there was nothing said on this subject; but it is there said, a purchaser may be relieved from his bid, if there [17]*17¿any fraud in the sale, but that he ought to apply at the first or ¿geond court.
.’.-In Hart v. Greenough, 7 Serg. & Rawle, 197, the sheriff -hjji.d made and delivered the deed: but in this case the dictum is i^ftst used, that the sheriff may sue fo'r'the purchase money with-cjut-having acknowledged and tendered, the deed: but it is not 'said that this may be done before the return day of the writ.
■ In the cpse of Fridley v. Scheetz, 9 Serg. & Rawle, 156, there jé a dictum, that the sheriff may tend.ed a conveyance and sue the purchase moneys ' y Ik
■ In Negly v. Stewart, 10 Serg. & Rawle, 207, no facts are $lated, except that it appears the money- was to be paid on. a certain day: but the broad positionis stated, that immediately on the property being struck down, the purchaser must pay the money, or .the sheriff may set it up again, and.if sold lower, may charge the first bidder with the difference. This is in direct contradiction of the case of Vastine v. Fury, 2 Serg. & Rawle, 426, and that case -was not cited in the argument or referred to in the opinion. As an universal proposition,, I do not agree to it. The practice in different counties differs greatly as to conducting sheriff’s sales. In some counties the sales are uniformly on the return day of the Writ, or by adjournment, on some day#in the same week, which is always court week: and in such cases "I agree entirely to the case in 10 Serg. & Rawle, 207. But in other counties the sales are uniformly many days or weeks before the return day. In some, the bidder always gives a bond, and warrant to confess judgment for the purchase money, payable on the return day: in others, he signs conditions1 óf sale, which are to pay on the return day: and some other varieties. ' Now in these' last cases, where the practice has been to take a judgment-bond or note payable oh the return day,' it would be unjust to vary .the practice, without- reason and without notice. The rule must be uniform in all sherifi’s sales in the'same county: or if a ease requires a difference,' the terms must .be publicly proclaimed before and at the sale, .
On a' sale of personal property, by an officer, the goods are delivered at once, and the money'is then demandablé: but I deny that the money can be recovered, unless the goods are delivered or ready to be delivered, u iless the terms of the sale are special.
What would be gained, whm: the sale is one or two months before the return day of the writ, b) requiring the bidder to pay on the spot. The plaintiff- would not get the money ; he could not sue the sheriff for it, or rule him to pay it; and as ¡Ñ' s:''-riff would be answerable if he paid it over, and the sale should be set aside, he never would pay it over.
[18]*18Many men are perfectly able to pay money at the end of a month or week, who have it not in their pocket at the moment of a sheriff’s sale. It would, then, occasion Iost to defendants, to require money to be paid long before it can be used; and the law was made for defendants, as well as plaintiffs: it would be a loss to younger judgment creditors, in the case of an insolvent defendant: and no advantage would result to any one,- except to sharpers and speculators at .sheriff’s sales.
It would not be practicable for this Court ‘to lay down a rule which would extend over the state ; for the Courts of Common Pleas have the right to make their own rules. And we can still less decide-on every ease which has accrued, according to a rule not yet made'. We have no evidence of any uniform practice-in this county- The practice in this particular instance was a bad one. The fact that the house, in question had been sold, and the sale set aside three times, does not make the ease stronger against-the defendant: we .have no evidence that it was set aside because the bidder had refused to pay: I may say it was' not for that reason- We have no evidence that the return in question was-made because Holdship was unable to pay. I presume there was another reason.-
On the whole, I see no reason which, in ordinary cases, will justify the sheriff ‘in demanding the money on a sale of lands before he can give a title, or the purchaser can get possession. I think he mav sue if the money is not ready at the return day, without tendering a deed; or he may,- if the money be not then paid, make the special return directed in the case in 1 Hall. 419-Unlessthe purchaser is notoriously insolvent, he cannot, long before the return day, return that'the purchaser-has not paid, and therefore unsold for want of buyers: and where he does: so, and has made no demand, and no evidence to justify him in so doing, the bidder is not liable "for a difference in price.
Upon the evidence given, the defendant is not liable, on the-ground stated in the first part )f the charge of the court; nor on any other ground as the ease n jw stands. ’