has so far violated his duty as to deceive him." And in the first case, p. 35, it is said, "if he takes the land in execution, knowing that the defendant has no title, his conduct is a fraudulent violation of duty." Here the sheriff, without mistake or ignorance of the facts, sold land, or an interest in land, which he had no authority to sell, and failed to state the nature of the interest sold and the facts regarding it which he knew, and which it was essential that every bidder should know. And we can but consider his conduct as a violation and neglect of duty, for which he is liable on his official bond, though the misconduct may amount to a fraud in the deputy, who actually conducted the execution.

But although the failure to announce the nature of the interest offered for sale, was a breach of official duty, it could not be denominated a fraud as to any purchaser who was otherwise apprised of the facts before his purchase. Nor could the present relators, if thus apprised of the facts, maintain this action for the recovery of more than nominal damages, either for the levy or return of their execution, or for the sale of a pretended interest to them, volenti non fit injuria. But they had a right to trust to the sheriff for obeying the mandate of the writ, and if they were, in truth, ignorant of the facts when they purchased, they may rightfully hold the sheriff responsible to the full extent of their loss, not only in the money paid upon the purchase, but also in the return of their execution as satisfied. They got nothing by their purchase. If they were ignorant of the facts, they had a right, knowing, as must be presumed, that Kelker once had title to the lot, and was in possession of it, to rest satisfied in the belief that they had made the first purchase. They had no reason to suppose otherwise, no motive or ground for inquiring about facts of which they had no intimation, and should not suffer for their inactivity until the time was coming round when they might expect either that the lot would be redeemed or that they might obtain an indefeasible title. They did not know that there was any occasion either for their attempting to redeem the lot, or to quash the execution. And if, as the evidence conduces to prove, their debt might have been made a short time after this sale, had an execution then been in hand, we are of opinion that assuming their continued ignorance of the nature of their purchase, they may recover in this action the whole amount of their bid, with interest; notwithstanding the fact that their debtor had no other property at the time of the levy and sale, except his interest in the lot, if after

having subsequently had other property sufficient to satisfy the debt, he again became insolvent before the relators were apprised of the grounds for quashing the return, or before they could have made their knowledge available for that purpose. If their debt could not have been made in the interval just designated, they would be entitled to recover only the amount paid upon the former execution, and for the sheriff's commission with interest. We will only add, that even if Kelker was present at the sale, and if he would have been concluded as to his interest, when it was not defined nor sold as by his authority or assent, still the purchase could not have been made available by one who was ignorant of the facts, and who knew neither that there was any right of redemption or that he was purchasing such right, and the case would not be altered by the fact supposed. Having thus stated the principles which, as we suppose, cover the whole case, it is sufficient to say that the opinions of the court in giving and withholding instructions, were inconsistent with these principles, and seem to have placed the case before the jury on the basis that the sheriff was not liable for damages unless he either actually misrepresented the facts or failed to answer inquiries, or was guilty of an intentional fraud.

Wherefore, the judgment is reversed upon the errors assigned by the plaintiffs in the writ, and the cause is remanded for a new trial.

SHERIFF'S DUTY TO INFORM PURCHASER OF THE EXISTENCE OF PRIOR INCUMBRANCES.—The doctrine maintained in the principal case, to the effect that a sheriff, in selling property taken by him under execution, is bound to inform all bidders and purchasers of the existence of any prior incumbrances thereon of which he has knowledge, and in default of so doing is liable to a purchaser who is injured thereby, has no authority in its support except the principal case, and may well be doubted. The two cases relied upon by the court will be seen on examination not to bear out the proposition for which they were cited, and the few remaining cases in which this doctrine is discussed are directly to the contrary. The case of McGhee v. Ellis, 4 Litt. 244, was an action brought by a judgment purchaser, from whom the property which he had bought as the property of the judgment debtor had been recov ered by its rightful owner, against the judgment creditor and the debtor. The sheriff was not made a party to the action in any manner. The other case of Wolford v. Phelps, 2 J. J. Marsh. 31, upon which the court relies, was similar in its nature. The quotations made from the opinions of the court in these two cases were mere dicta, and in no way essential to a determination of the questions necessary to be decided. In Iull v. Charnley, 11 N. Y. 506, the liability of a sheriff in selling personal property subject to a chattel mortgage was elaborately discussed by Judge Denio, and the general doctrine laid down by that eminent jurist as to the duty of a sheriff under such circumstances does not harmonize with the doctrine of the principal case. The court said: "Whether the sheriff assumed to sell the whole interest, ignoring

the existence of the mortgage, or limited the sale to the mortgagor's interest, expressly recognizing the mortgage and selling subject to it, the rights of the purchaser would in either case be precisely the same. The mortgagee would not be deprived of his interest by a sale which did not recognize the mortgage, nor would the purchaser under such a sale acquire anything more than the interest which was bound by execution." And to the same effect is Carpenter v. Simmons, 28 How. Pr. 12. In Carson's Case, 6 Watts, 140, the question was directly presented, and the reasons advanced by the court seem so conclusive that a quotation at length is advisable. This was a motion to set aside an execution sale on the ground that at the time of making the same the sheriff neglected to state that certain incumbrances, which were supposed to be on the property, had been paid, of which fact it was alleged he had knowledge.

The court repudiated this position as follows: "I think it likely that it never was before heard of, that it was the duty of the sheriff to examine into and to know, before he sold real estate taken in execution by him, whether there were any incumbrances upon it or not, besides the one for which the sale was about to be made; and then not only to make them known at the time of sale, but to decide and give notice to those in attendance, who may be disposed to bid, what will be the legal effect of his sale; whether it will discharge the property from all or any of the other incumbrances in case such exist, or whether it will still remain liable to them, and if to any and not all, which of them. If such were his duty, it would require him to decide questions occasionally which few, if any, of our sheriffs would be competent to pass upon. But at no time, either before or after the sale, can he be called on to decide on any such matters; for after the sale, when he has received the money, he may bring it into court, and demand of the court an order or decree, directing how it shall be paid and distributed among those who in the opinion of the court are by law entitled to it, and thus protect himself from all responsibility in respect to the disposition of it. Bidders, therefore, must look out and take care of themselves. It is their business to examine beforehand, and after having made themselves acquainted with the facts and circumstances in relation to incumbrances, if any exist, then to decide for themselves as to what will be the legal effect and operation of the sale upon them. It is true that in doing this, questions may arise occasionally of no little difficulty, such indeed as may require the best legal advice that is to be had, in order to bid safely; but this, generally, is not without the reach of those who are able to buy; and caveat emptor, as was said by the attorney of the plaintiff at the time of the sale, when he was asked to say whether it was to be understood the property was to be sold subject to the bank mortgage or not, is certainly the rule that must govern and determine the rights and liabilities of those who become purchasers at sheriffs' sales. The sheriff, in making the sale, acts merely as a ministerial officer." This view is adopted and approved by Mr. Freeman in his work on executions, section 338. That the sheriff, in making a sale under judicial process, can not warrant the title of the property sold, and that the doctrine of caveat emptor applies in full force to such sales, are equally well-settled doctrines: Laws v. Thompson, 4 Jones' L. 104; Salmond v. Price, 13 Ohio, 383; The Monte Allegre, 9 Wheat. 616.

CHENOWITH v. CHAMBERLIN.

[6 B. MONROE, 60.]

BILL OF EXCHANGE IS A FOREIGN BILL, IF DRAWN by a citizen of one state on a firm in another state.

REGULAR AND FORMAL PROTEST IS NECESSARY TO RECOVERY, upon a foreign bill of exchange, against a maker or indorser.

PRESENTATION And Noting for NON-PAYMENT by the clerk of the notary, is not sufficient, in the absence of proof that such a practice is sanctioned by the custom of the place where the demand was made.

ACCOMMODATION INDORSEMENT OF BILL OF EXCHANGE BY ONE MEMBER OF

A FIRM is not sufficient to charge the other member of the firm, in the absence of proof of an express or implied authority, independent of the authority conferred by the partnership.

THE facts are stated in the opinion.

Pirtle, for the plaintiffs.

Fry and Page, for the defendant.

By Court, EWING, C. J. William P. Scott, of Louisville, drew a bill of exchange in favor of Chenowith & Co., on the firm of Scott & Co., of New Orleans, of which he was a member, for the sum of one thousand eight hundred and ninety-five dollars and eighty-two cents, payable six months after date, which was indorsed, as accommodation indorsers, by Thayer & Co., and accepted by Scott & Co. The indorsement of the firm of Thayer & Co. was made by Thayer, one of the firm, without the knowledge of Chamberlin, the other member of the firm, and the fact of the indorsement by Thayer, one of the firm, was known to the plaintiffs. The bill was protested for non-payment, and the protest regularly made out, under the hand and official seal of the notary public, of New Orleans, and notice in due form given. But it was proved by a witness, that the presentation for payment was made by a clerk of the notary, and not by the notary himself. Nor is there any proof in this case, as was in the case of McClane v. Fitch & Chambers, 4 B. Mon. 600, that it was the universal custom of New Orleans, for the clerk of the notary to make presentment of bills for payment, and note their non-payment. The circuit court instructed the jury, that if they believed that the bill in question was presented by a clerk, and not by the notary himself, they should find for the defendant, Chamberlin, the suit having been abated as to Thayer, who indorsed it. The jury so found, and a motion for a new trial being overruled, the plaintiffs have appealed to this court.

The bill in question being drawn by a citizen in Kentucky, on

AM. DEO. VOL. XLIII-10

a firm of another state of this union,and made payable there, is not an inland or domestic bill, but a foreign bill, and partakes of the nature, and is subject to the rules of the mercantile law, applicable to foreign bills: Landsdale v. Brown, C. C. U. S., Appendix No. 2 to 2 Pet.; Buckner v. Finley and Van Lear, 2 Pet. 586. Our statute, 1 Stat. L. 249, does not designate the character of the bill, but only prescribes a different rate of damages recoverable on a bill drawn in one state of this union on another, from the amount recoverable on a bill drawn in this state, and made payable in a foreign country.

This being a foreign bill, a protest regularly made out in due form, is necessary to a recovery, and upon any other proof of presentation for payment and refusal than that evidenced by the protest, a recovery can not be had against a drawer or indorser: Chit. on Bills, 214, and the authorities referred to. And it is now pretty well settled, that the presentation and noting for non-payment, must be made by the notary public himself, as an accredited public officer, and will not be good, if presented by his clerk: Id. 211 (same, 8th Lond. ed. 494, note O), and the authorities referred to in Mr. Chitty's correspondence with the London and Liverpool merchants; the Onondaga Bank v. Bates, 3 Hill, 53. Unless, as was determined by this court in the case of McClane v. Fitch & Chambers, 4 B. Mon. 600, the payment and demand of payment by the clerk of the notary, is sanctioned and sustained by the custom of the city or place where the demand is made. And as the existence of such a custom in New Orleans has not been proven in this case, and as a matter of fact, could not be regarded by the court or jury, except upon its proof, the instruction of the court was proper, and the verdict of the jury justified by the proof.

Moreover, the indorsement of the bill by Thayer, in the firm name, as mere accommodation indorsers, is not sufficient to charge Chamberlin, the other member of the firm, in the absence of proof of an express or implied authority, independent of the authority conferred by the partnership. And, though the proof that Scott & Co., at whose instance the indorsement was made, had been in the habit, during the same summer and fall, of indorsing for the accommodation of Thayer & Co., which was known to Chamberlin, was properly left to the jury, and might perhaps have been deemed sufficient to sustain their verdict had they found against Chamberlin, yet can scarcely be deemed sufficient to authorize a reversal against their finding in his favor. The judgment of the circuit court is affirmed, with costs.