The bill was filed in July, 1842, and its material allegations are, that, at a sale made on the seventh day of the preceding month by Prior McEntire as administrator of Rebecca McEntire, the defendant, Clark, bid off a negro man slave by the name of Brisk at the price of three hundred dollars and five cents, and, according to the terms of the sale, executed his bond jointly with the plaintiff, Beam, for the said sum, payable at twelve months; that, in bidding off the said negro, the said defendant acted, by express agreement with the plaintiff, merely as his, the plaintiff's agent and for his, the plaintiff's benefit; that the said defendant was an utterly insolvent man, and the plaintiff never would have joined the defendant in the said bond, but upon the express agreement and promise of the said defendant, immediately to transfer to the plaintiff the legal title *Page 43 in the slave so bought for the plaintiff; that as soon as the bond for the price of the negro was executed, the defendant, Blanton, as sheriff, levied an execution or executions upon the slave as the property of Clark, although the said Blanton knew that the slave had been purchased by Clark for the plaintiff; that the defendant, Clark, had refused to convey the slave to the plaintiff, alleging that he purchased for himself and that the plaintiff was to give him one hundred dollars for his bargain, which allegation the plaintiff alleges to be utterly false; and that the said defendant hath sold the said slave to the said Blanton, who claims him as his own property. The prayer of the bill is, that the defendants may be declared trustees for the plaintiff, and be decreed to surrender the said slave to him, and that Clark be decreed to execute a title therefor to the plaintiff, that the said slave be held liable for the payment of the bond aforesaid, and, in the meantime, an injunction may be awarded to restrain the defendant, Blanton, by himself or deputy, from selling the said slave, and for general relief. An injunction was granted according to the prayer of the bill, and, notwithstanding its dissolution was prayed for upon the coming in of the answers of the defendants, it has been continued until the hearing. ( 61 )
The defendant, Clark, denies by his answer that he bid off the slave as the agent of the plaintiff, or at his request, or under any agreement of any kind with him; but declares that he purchased solely for himself and with a view to speculation, and that the plaintiff joined him in the execution of the bond for the purchase money as his surety. He declares further, that, after the levy of certain executions, one by the defendant, Blanton, and the other by a constable, upon the said slave as the property of the defendant, Clark, the plaintiff proposed to the said defendant to take the said negro off his hands, and it was finally agreed between them that the plaintiff should satisfy said executions, substitute his bond with good sureties in the place of that previously given for the price, and the defendant should relinquish the slave to him; that the plaintiff failed to comply with this agreement; that Blanton then took the slave into his possession, and the plaintiff told this defendant to do the best he could with him; that thereupon it was arranged between this defendant and Blanton that, if this defendant could not sell him for a greater price, which he was at liberty to do, the negro should be put up at sale under the execution at the price of $259, and, if no person bid any more, Blanton should take him at that price. This defendant further states, that he has satisfied both the executions levied on the negro, that the bond for *Page 44 the purchase money is not yet due, and that he will be able to make arrangements to meet it when it shall fall due.
The defendant, Blanton, denies in his answer all knowledge whatever, that the defendant, Clark, had bought the slave in question under any agreement with, or as the agent or at the request of the plaintiff; declares that he levied upon the said slave as the property of his co-defendant, without any suspicion that the plaintiff had or claimed an interest therein; states the subsequent attempts that were made by the plaintiff to make an arrangement with Clark and the final abandonment thereof, as set forth in the answer of his co-defendant; admits that the execution in his hands has been satisfied; and, after setting forth the inchoate and conditional agreement, mentioned by his co-defendant, (62) for his purchase of the slave, represents the same as having been put an end to by the filing of the bill.
To these answers replication was filed, the parties proceeded to take proofs and the cause was set for hearing. As the cause is before us to be heard upon the pleadings and proofs, it is not necessary to express an opinion upon the regularity or propriety of the injunction, which was granted upon the filing of the bill and continued until the hearing, to forbid the sheriff from selling the slave under legal process. But it may not be amiss to suggest, that according to the rules of a Court of Equity an injunction to restrain proceeding with an execution is a mandate to the creditor not to the officer and the person to be restrained thereby should be made a party to the proceedings.
We see no ground for a decree that the slave shall be liable for the payment of the bond given to secure the purchase-money. In England, where the lien of the vendor for the unpaid purchase-money is carried very far, we are not aware that such a lien is recognized in the case of the sale of a chattel; and, still less, that it exists in favor of a surety, who fears that he may be compelled to pay the price.
But we hold that the plaintiff is entitled to relief, upon the proofs that the defendant, Clark, purchased for him and as his agent. It is unnecessary to go through the evidence minutely. One fact is established by the testimony of a number of witnesses, in direct opposition to the answer of Clark, that there was a previous agreement that he should buy for the plaintiff. *Page 45 It is proved by them, that, when charged by the plaintiff, as soon as the difficulty arose, that he had bid and bought as the plaintiff's agent, he admitted the truth of the allegation. Besides this, one witness (Wellman) declares that he was present with the parties when it was agreed that Clark should bid for the plaintiff as far as $300; (63) that, after that sum had been bid, Clark applied to the plaintiff to know whether he might bid more; that he was told he might bid as far as ten or twenty dollars more; and therefore he bid five cents more and was declared the highest bidder. It may be that he was to receive some price or compensation for performing this agency, but there is no such allegation, nor, if there were, is there any proof to sustain it. We are satisfied, also, upon the testimony, that, after the executions were levied and Clark insisted on claiming the negro, the plaintiff did endeavor to make the arrangements set forth in the answers. But this fact is not inconsistent with the averment that the purchase had been made by Clark as his agent. It is in proof that Clark was insolvent. The purchase had been ostensibly made by him, and he having taken possession of the slave as his property, it was not extraordinary that the plaintiff, who had joined in the bond, should be willing to make some sacrifice to obtain the possession of the slave and to be quieted in his title. It is also proved that when the proposed arrangement had failed, the plaintiff did declare that he would forego his claim and run the risk of being compelled to pay the bond; and if, upon the faith of this declaration, any person had bought from Clark, we should not allow the plaintiff to enforce his equitable title against such purchaser. But no such purchase was made, nor is any title set up, adverse to that of the plaintiff, except the title of his trustee, and this bill was filed to enforce the plaintiff's claim within a few weeks after the transaction.
It does not appear whether the bond for the purchase-money has been paid or not, nor by whom the slave has been held since the filing of the bill. While we declare, therefore, that the slave was purchased by the defendant, Clark, as the agent of the plaintiff, it must be referred to the Clerk of the Court to enquire and report whether the purchase-money has been paid, and, if so, by whom — what is the value of the hire or services of the slave since he has been withheld from the ( 64 ) plaintiff — and who has received the benefit of such hire or services.
PER CURIAM. REFERENCE ORDERED ACCORDINGLY. *Page 46