DAVID HOPKINS against ALLAN DE GRAFFENREid.

TRESPASS to try title to land. Motion to set aside

nonsuit.

This was a case from the former district of Pinckney, in which there had been a former nonsuit on account of the plaintiff's failure in proving a deed; (see that case, ante, 187.) and on the second trial after the former nonsuit was set aside, the plaintiff was nonsuited a second time for not producing the fi. fa. by virtue of which the sheriff of Old Camden district, had sold the premises in question to the plaintiff. The Judge (GRIMKE) who presided when this second trial came on, was of opinion, that the fi. fa. was an essential link in the chain of title to shew the sheriff's authority for selling; and as that was not produced, or its loss satisfactorily accounted for, he directed a second nonsuit.

This, therefore, was a motion to set aside this second nonsuit.

Mr. Smith, for the motion, took two grounds; 1st. That the presiding Judge ordered this nonsuit without the consent of the plaintiff in the action, who was willing to risk his case with the jury; and, 2dly. That the execution, or fi. fa. was not essentially necessary to be shewn on a trial for lands, where a title depends on a sheriff's deed or con

veyance.

Columbia, 1802.

Upon the first ground, he contended, that when a jury is once sworn upon a cause and charged with the evidence, 1 Lord Raythe judge cannot discharge them from that cause till they mond, 129. 1 Cromp. 257. give their verdict without the plaintiff's consent. That if the plaintiff thought proper to risk his cause to a jury upon such evidence as he could procure, or such as he thought would bear him out in his case, a judge should not step in between him and the jury and prevent them from giving in their verdict; nor can a judge regularly order the plaintiff to be nonsuited against his will and consent, so as to deprive

Hopkins

him by such order of the benefit of the inestimable trial by De Graffen- a jury of the country. 2 Durnford and East, 275. 281.

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reid.

2dly. In respect to the fi. fa. he said, it was not essentially necessary to be produced on the trial, where the title depends upon a sheriff's deed. It is the judgment that binds the lands of a defendant and makes them liable for the debt of the plaintiff; an exemplification of which was produced on the trial. This proved that the lands in question were bound for the satisfaction of the judgment; the execution afterwards, was no more than the mandatory of the court, commanding the sheriff to give the plaintiff the fruits of his judgment, by selling the land and raising the money to be paid over to the plaintiff. This was only the sheriff's warrant for his proceedings, and a bona fide purchaser had nothing to do with it. That a sheriff was a public officer of great trust and confidence, entrusted with the final execution of the law, and therefore the law would always presume strongly in his favour, or in the regularity of his proceedings, until the contrary was made to appear. In the deed offered in evidence, the sheriff had recited the suit and judgment, and referred to them on record as the foundation of all the proceedings, and the right of the plaintiff in this suit. He then recited the execution or fi. fa. and levy on the lands; next the advertising, and sale to the plaintiff, as the highest bidder. Why stop at the execution and require its production? Why not call for proof of the levy, the advertising and sale to the purchaser? They are all as essentially necessary as the execution itself; but this would be going too far, and would look too much like making trifling objections without weight or substance. The answer to all these objections, however, and the truth is, that they are all the necessary concomitants and attendants on such kind of legal transactions, without which the plaintiff in an action never could gain the fruits and ends of his suit; and, therefore, the law rejects all these little niceties as unworthy of its notice, and will presume in favour of such important rights, and also in favour of an officer of such high trust, that all has been done which ought to have

Hopkins

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been done; and these are not light presumptions, founded on trivial circumstances, but strong presumptions arising De Graffenfrom the nature and course of proceedings by executive officers. Besides, he further observed, that it was well known both to the bench and the bar, that a sheriff in the execution of his duty, is very often obliged to make partial sales of lands where a defendant has a number of tracts, one to A. and another to B. and so on to others again, and still the proceeds may not be sufficient to pay off the amount of the plaintiff's judgment. Now, how is it possible in such a case, that any one of the purchasers can get possession of the execution under which these partial sales were made? It is therefore most evident, that the execution makes no part of the purchaser's title under a sheriff's deed, nor can any purchaser compel a sheriff to deliver it over to him; on the contrary, the sheriff is bound in duty to return all such executions into the court from which they issued, in order that the court may see how much of the judgment is satisfied and paid over to the plaintiff, and how much is still due in cases where further proceedings may be necessary. But, he said, it was notorious that the sheriffs and their deputies had been very remiss in returning executions into court. It was one of the great evils complained of in this country previous to the act of 1791. Hundreds of executions have either been kept back, lost or mislaid in the course of this irregularity, that cannot possibly be produced or accounted for by innocent purchasers. To call in question, therefore, the rights of parties to lands fairly pur chased at sheriffs' sales for the want of the execution, under all these circumstances, would be the height of injustice, and would jeopardize the greatest part of the titles to lands in Carolina, purchased at said sales.

Mr. Nott, in reply, urged that the execution should be produced, as probably it might appear that the debt had been satisfied. If so, then the sheriff had no right to sell. At all events, it should be produced to shew the sheriff's authority to seize and sell, and that the sale was made in

Hopkins

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De Graffen

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pursuance of that authority, and while the execution was in full force; for if the sale was made after the active energy of the execution had ceased, the sale would be illegal. He quoted the case of Bullock and Thompson, at Ninety-Six, where he said, he understood it had been determined, that the execution should be produced, and a sheriff's deed had been rejected on account of its non-production.

On the other point respecting the nonsuit, he observed, that it was the province of the judges to determine the law, and juries the facts. That if it appeared to a judge that no legal evidence was offered to support a suit, or, as in the present case, the plaintiff's title, of which the judge only was competent to determine, it was his duty to direct a nonsuit; for, it would be a nugatory act to send a case to a jury, where there was no legal evidence to support it; and whatever the old practice might have been in England, of the judges not ordering a nonsuit without consent of the plaintiff, when they discovered a defect of evidence, it was neither founded in good sense nor sound reason; and modern adjudications have determined otherwise. In this country it is invariably the practice for the judges, in all cases, to exercise that discretionary power which the law has vested in them, wherever they have discovered a defect of evidence to support the plaintiff's claim.

Falconer, on the part of the defendant, supported Mr. Nott, and argued, that whatever might have been the conduct of sheriffs hitherto, in not returning executions into the clerks' offices, it should not prejudice the citizens, whose rights were to be called into question by sheriffs' sales. The sheriff's authority to sell ought to be shewn, by which he was to devest a defendant of his landed property, and transfer it to another. Nothing should be left to presumption or intendment, which went to deprive a man of his freehold and inheritance. There were few or no cases in the English reporters to aid us in a case of this kind, as landed estates could only be extended for debt in that country. Our country must, therefore, resort to principles to bear them

out in their decisions here, and where no power is shewn to sell, none is to be presumed.

The majority of the Judges, in this case, after due consideration, were of opinion, that the nonsuit ought to be set aside, and the cause once more reinstated on the docket for trial, on the second ground taken in support of this motion.

Hopkins

Y.

De Graffen

reid.

On the first ground, however, they concurred in opinion with the other judges, in principle, that on a trial before a jury, wherever it appears that the evidence is insufficient to make out the plaintiff's case, or where there is a total failure of proof necessary for that purpose, it is the duty of the judge to order a nonsuit, whether the plaintiff consent or not, because there can be nothing to send to the jury to found their verdict upon, and, consequently, any verdict they could give would be a nugatory act. That this point had been determined in the case of Brown and Frost, after solemn argument, in Charleston, in 1798, and it had been the Frost, ante, invariable practice both before and since.

On the second ground, with respect to the production of the writ of fi. fa. on the trial of an issue, where the plaintiff's title to lands depends upon a sheriff's deed, they were of opinion that it was not necessary to produce it. That these sales being made by operation of law, and by a public officer, entrusted with the execution of the law, duly appointed and sworn for that purpose, the same degree of faith and credit is due to his deed, under hand and seal, as could or ought to be given to any return on the back of an execution, if it had been produced, for the one act is as much the act of the sheriff, and as much within the line of his official duty, as the other; and they are equally entitled to credit in the eye of the law.

In private transactions, where men act as agents or attorneys for each other, in pursuance of private powers, their authority must be shewn, and nothing is to be presumed in such cases but what is proved. Whereas, in the execution of the law, and in pursuance of a public authority,

See the ease of Brown and

126.