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Thayer and
Sturgis

Sheriff of
Charleston.

power. In a case, however, like the present, they thought Creditors of that it would be clogging public sales, made by operation of law, exceedingly, to lay down any such rule, even if the common law would admit of it. These sales are made by operation of law, in which the will and consent of the defendants are never consulted. They are forced upon them, whether they assent or dissent to or from them, and it is their right, whatever that may be, more or less, that is sold by the sheriff, who is a public officer of justice. There is no warranty in law, either express or implied, raised on any of the parties concerned in such a sale; neither on the part of the former owner, the defendant, nor the sheriff, who is the mere organ of the law for transferring the right of the defendant. Caveat emptor, under those circumstances, is the best possible rule that can be laid down or adopted. Every man who goes to a sheriff's sale, ought to take care and examine into the title of the defendant carefully before he attempts to bid; and that is one reason, among many, why property is in general sold so much under its real value at these sales. The case of Mrs. Blake, relied upon, had no bearing on or analogy to the present one; that was an action brought on a special agreement, for the consideration. money of a tract or lot of land sold at private sale, in which case legal conveyances were tendered, and the claim of dower went by consent of parties to the jury, to be deducted at once from the consideration money. It was a kind of compromise between the parties, and not fixed by any rule of law; therefore, can never be urged as a precedent, in a case like the one now under consideration of the court.

The rule was, therefore, made absolute on the sheriff, to bring the money into court, or to resell without delay, at the risk of the purchaser.

Present, BURKE, GRIMKE and Bay.

Charleston District,1798.

Tradesmen's books good evidence to prove work and labour, as

a carpenter, to a jury, under

a fair con

struction of

JOHN SLADE against ISAAC TEASDALE.

ASSUMPSIT on a book account, for carpenter's work. In support of the action to the jury, the plaintiff offered his book of original entries, to prove his account for work and labour as a carpenter. An exception was taken to this book being given in evidence, on the ground that the act althe act of the lowing merchants' books to be given in evidence, to prove legislature, altheir open accounts, was a deviation from the rules of the common law, and, as such, should be construed strictly, and confined to merchants only, and not extended by construction to any other class of men. But this was overruled by the presiding judge, who permitted the book to go to the jury as evidence of the work and labour, and they found for the plaintiff the amount of his account.

lowing mer

chants' books

to be given in

evidence to

prove book ac

counts.

A motion was afterwards made for a new trial, on the same ground. But it was resolved by all the judges present, that as it had long been the practice of this court, even before the revolution, to permit tradesmen's books under a fair construction of the act, to go to the jury, the judge who tried the cause acted regularly, in permitting the books in the present case, to be sent to them as evidence of the plaintiff's demand. They said, it had long been established as a rule, that all classes of men, who were obliged to keep books in the way of their trade, should be put upon the same footing. They saw no good reason, why a merchant should be peculiarly privileged, and tradesmen excluded from the like benefit. The construction given, appeared to The same point was de- them to be a reasonable one; at all events it had been so termined in

the case of long in use as a rule of evidence in our courts in this counLamb v. Hart,

at Columbia, try, that they did not think themselves at liberty to depart

in 1802. All

the judges from it.

present.

The rule for a new trial was therefore discharged.

Present, BURKE, GRIMKE and BAY.

N. B. Since the determination of the above cases in favour of tradesmen's books, the rule has been circumscribed as to other classes of men. In Charleston, in 1807, in the case of Watson v. Bigelow, a scrivener's book was determined not to be good evidence for services performed in that line, and for commissions, &c. Also in the case of Geter v. Martin, at Columbia, in May, 1807, it was determined that a planter's book was not within the act.

BAY and TREZEVANT, contra.

See these cases in their order. Post.

Slade

V.

Teasdale.

ISAAC TEASDALE against JOHN HART, Sheriff of Charles- Charleston

ton District.

District,1798.

SPECIAL action on the case, for taking insufficient bail, Where a she

per quod, plaintiff lost his debt.

From the report of the presiding judge, the circumstances of the case appeared on the trial to be substantially as follows. That a writ on which an order for bail was endorsed, for 2117. sterling, was delivered into the sheriff's office, against one Powell, who resided in North Carolina, at the suit of the present plaintiff, Mr. Teasdale. This writ was put into the hands of one of the sheriff's deputies named Quin, who took and arrested the body of the defendant in the action. While the defendant was in custody of this deputy, it appeared, that he and the defendant prevailed upon one Pine to become bail for defendant's appearance; that after Pine had signed the bail-bond, he was induced to go before a justice of the peace, and swear that he was a householder, and worth the sum mentioned in the order for bail, over and above all his just debts, which

riff's deputy takes insufficient bail, or

is in any wise

concerned in tampering with a poor man to be

come bail, solvent cir

who is in in

cumstances,

the sheriff' is

answerable

for the debt.

Teasdale

V.

Hart.

affidavit was annexed to the writ as the sheriff's justification, for taking Pine as the security for Powell's appearance. Upon which, Quin, the deputy, suffered the defendant, Powell, to go at large. Powell, immediately after, went off to North Carolina, and never returned; and Pine soon after was proved to be in insolvent circumstances. Whereupon the plaintiff, brought the present action against the sheriff, for the misconduct of his deputy, in taking insufficient bail.

In support of the action, it was urged, that the sheriff being an officer of high trust, he was answerable for the misconduct of any one acting under him, and that the conduct. of Quin, the deputy to whom this writ was delivered, was shameful in a high degree. That Pine was notoriously a poor man, who lived in a miserable hovel, and had nothing of respectability attached to him, but depended on his daily labour for his subsistence; he had no visible property, nor the appearance of means, beyond the demands of the day. Under such circumstances, it was said, it was a sad abuse of power on the part of the deputy, to tamper with this poor man, in the first place to become bail; and in the next place, to induce him to go before a magistrate, and take an oath that he was worth the money endorsed on the writ; which was adding subornation of perjury to imposition on the plaintiff in the action.

For the sheriff, in reply, it was said, it would be a hard case to make him answerable for so large a sum of money for the irregularity of one of his deputies; that he was obliged to take the best men that could be got, to do the business of his office; and when they acted to the best of their judgments, it was as much as the law required of him. In the present case it was alleged, that the deputy had pursued the rules of law, laid down in the case of Teasdale v. KenRep. nedy, tried in this court in 1793, where it was determined, vol. 1. p. 322. Riley's edit.

that if a sheriff takes a householder in apparent good cir"cumstances as bail, the sheriff shall not be liable in a

"special action, though the bail should afterwards prove "insolvent ;" this, it was said, was a case exactly similar to the case quoted; and the rule prescribed for the government of the sheriff in that case had been pursued in the pre

sent one.

The presiding judge then stated to the jury, that it was for them to determine, whether there was an exercise of that sound discretion on the part of the sheriff's officer, which the law requires on such occasions, or not? or whether there was that tampering with the bail, and misconduct on his part, which had been stated by the plaintiff on the present occasion or not? and to govern themselves in their verdict accordingly. The jury retired and soon after brought in a verdict for the plaintiff, with 2114. sterling damages.

A motion was afterwards made for a new trial, on the ground that it was a hard verdict, not warranted by law. But the judges refused the motion, as in their opinion, it was a case which turned principally on facts, which were for the consideration of the jury; and the judge who tried the cause, had very properly submitted it to them, on the facts arising out of the cause, and they had found for the plaintiff. The law, they said, was very clear, and well laid down in the case they quoted, on the trial of Teasdale v. Kennedy. Every sheriff was liable for the acts of all his officers, and all persons acting under him in every subordinate capacity; and they on their parts, are bound to conduct themselves in the like manner as the sheriff himself ought to do, if he was present; and he is not to be let off, on account of the blunders, misconduct, or errors of any of his inferior agents. On the subject of taking bail, the law had laid down reasonable rules; the object was to procure and obtain responsibility for the defendant's personal appearance, or payment of the money, and this was what the law principally required on the part of executive officers; it was

Teasdale

V.

Hart.

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