Lynch against The Commonwealth, 6 Watts 495

The opinion of the Court was delivered by Sergeant, J. The English practice in relation to sales by the sheriff of goods levied on by fieri facias, differs from ours, and the same rules are not always applicable. In England, it is said, the sheriff is not obliged to sell by auction, and if he do, the expense of the auctioneer, and of the inventory will fall upon himself. Buller, J. 2 T. R. 157, cited Wats. Sheriff 188. And if sold by auction much below their reaL value, the sheriff is liable to an action. 3 Campb. 520.

The duty of the sheriff is to sell at private sale, and it seems, if this be fairly done on a fieri facias, the sheriff is not liable to an action, though the property be sold much below its real value. 1 Stark. 43. The reason is, that the sheriff may sell to the plaintiff himself, at an appraisement, and, therefore, the plaintiff ought not to be allowed to object to the amount for which the sheriff sold, or even to his omitting to sell for want of buyers on a venditioni exponas: the court saying, if the plaintiff were dissatisfied, he might have set up a purchaser of the goods himself. 1 Bos. & Pul. 359.

Under our practice, goods levied on by fieri facias, ares old by the sheriff at public vendue, and it is believed have always been so. The auction laws exempted from their prohibitions sheriffs, who sold by vendue, goods taken in execution.

The act of the 21st of March 1806, sect. 11, directs the sheriff or coroner to whom is directed any process of execution for the recovery of money, to proceed to collect the same, and, if the defendant refuse or neglect to pay the debt and costs, to levy on his personal estate, and thereafter make sale thereof, first having given six days notice, by not less than six handbills, to be put up at such places as he shall deem best calculated to give information, and with the money arising from such sale, to pay the debt and costs, and make return at the next court.

In the absence of any directions from the plaintiff, the sheriff pursues the exigency of his writ by selling at public sale, and if he is guilty of no fraud or neglect in relation to such sale, is not answerable to the plaintiff, although the goods may have brought an inadequate price. A grossly inadequate price may be evidence of such fraud or neglect in the discharge of his duty, but does not, j>er se, give the plaintiff a right of . action.

The plaintiff has, or is presumed to have notice of the public sale, and has power to attend and purchase like any other individual, or may, so far as respects himself, delay it by his directions to the sheriff. If he neglects to give directions or to attend the sale, the sheriff cannot know whether he desires a peremptory sale or not. A case may be easily supposed, where the plaintiff having' other security for his debt, would be indifferent Avhat price the goods brought, and would complain if the sale did not proceed.

Neither the act of assembly, nor our practice, seems to make any difference in the duty of the sheriff, whether the proceeding is on a fieri facias or venditioni exponas. In both, in the absence of other directions, he complies Avith his duty by advertising and selling.

How far he might, from a regard to the defendant’s interests, be required or authorized to postpone a sale where the goods would be palpably sacrificed, is another question: but as to the plaintiff in the execution, it is clear, that unless the sheriff is guilty of fraud or neglect, he is not answerable for merely proceeding to the sale of the goods as required by his writ, though they bring an inadequate price. Judgment reversed, and a venire facias de novo awarded.