founded on the proceedings of the courts of justice, every thing concomitant with the execution of a public trust by the officers of justice is to be presumed in their favour, until irregularities or violations of their duty are shewn ; especially after a lapse of years, when it would be as difficult to shew that every punctilio of the law was complied with in making a sheriff's sale, as it would be to shew that all the requisites of the rules and practice of the court had been complied with before the judgment was entered up.

The recitals in a sheriff's deed, under his hand and seal, ought to be received as an official return of his proceedings in the final completion of the suit, as much as his return to any part of the proceedings in the cause, from the service of the first process down to his giving the plaintiff the fruits of his judgment; and the law will not presume that the sheriff has done wrong, or certified what is not true. Another strong reason why great faith and credit ought to be given to so high and confidential an officer of justice, is, that it very frequently happens that partial sales are made under the same execution, and that several separate tracts of land are sold to different persons. It is, therefore, impossible that each purchaser can have the execution delivered over to him. This circumstance is a strong proof that the law never intended nor contemplated that the execution or fi. fa. under which lands were sold, should be delivered to the purchaser, or make any part of his title. On the contrary, the law requires that the execution should be returned into the prothonotary's office by the sheriff, that the court might see that justice was done the plaintiff in the action; and if need should require, that further process might be awarded for that purpose, if the plaintiff was not fully satisfied. It is evident, therefore, that this writ is under the power of the sheriff, until this final return is made. A bona fide purchaser has no control over it; and it would be unjust if he should suffer for any neglect or omission of the sheriff, after he had fairly and honestly paid away the purchase-money, and obtained his deed.

It is a notorious fact, however, that the sheriffs of this country, and their deputies, were very negligent in making returns to executions, in many parts of the country, after the revolution; and many of them still are so, notwithstanding the act of 1791, which was intended, among other things, to guard against that inconvenience. To make their

misconduct or irregularities the ground of shaking the titles of those citizens who hold lands under sheriffs' deeds, would be extremely injurious to a large portion of the citizens of this country, and subversive of the ends of justice.

The case of Bullock and Thompson, quoted in the course of the argument, did not turn on the production or nonproduction of the fi. fa. under which the land was supposed to have been sold, but on the want of an exemplification of a judgment, which it was alleged had been obtained, and which, consequently, bound the lands then in question; and it was upon that ground that the sheriff's deed, which was then offered in evidence, was rejected, as there was nothing before the court to evince a judgment or any subsequent proceedings. There was nothing in that case which had any application to the one now under consideration.

Mr. Justice WATIES dissented from this opinion of the majority of the judges, and agreed with the presiding judge on the trial, (GRIMKE,) that the fi. fa. was an indispensable requisite in the chain of title under a sheriff's deed, and that it should be produced, or its loss satisfactorily accounted for; and, therefore, that the nonsuit was very regularly and properly ordered.

Rule for setting aside the nonsuit, and reinstating the cause on the docket a second time, made absolute.

Present, GRIMKE, WATIES, BAY, JOHNSON, TREZEVANT and BREVARD.

Columbia, 1802.

Where all the

witnesses to a

WILLIAM DICKSON, surviving Executor of JOHN DICK-
SON, deceased, against JOSEPH Bates.

TRESPASS to try titles to land in Pendleton district.

will are lega- Motion to set aside nonsuit.

tees, and are to take a bene- This case turned in a great degree upon the will of the ficiary interest under it, none testator, J. Dickson, deceased, but all the witnesses to the of them can be execution of it were legatees, and were to take a beneficiary permitted to prove it, un interest under it. In support of the plaintiff's title, it was is given by the urged, that one of the legatees at least ought to be permit

less a release

legatee who is

witness.

offered as the ted to prove the execution of the will, from the necessity of the case, as without it a manifest injury would be done to the plaintiff in this action. But the presiding judge would not permit either of them to be sworn.

The defendant, therefore, moved for, and the court ordered, a nonsuit. This was, therefore, a motion to set aside the nonsuit.

But the Judges refused the motion, observing, that the decision in the circuit court was correct, unless one of the witnesses had released his interest; then he might have been a competent witness, but not otherwise.

Rule to set aside the nonsuit discharged.

All the Judges present.

HAWKINS against HALL and others.

UPON a claim of dower. Motion to reverse the order

of the circuit court, setting aside the return of the commissioners, &c.

uncertain re

Columbia, 1802.

Where the commission

ers in a writ

of dower assign to a widowmorethan by any rule of law, the law she is en

ought to be set aside for this irregu

In this case the commissioners made a very turn to the writ of dower issued to them, and it was apparent that they had given the widow more than one third of proceedings the land she was entitled to, according to their own calculation, to the injury of the heirs and others claiming the residue; upon which the presiding judge directed all the proceedings to be quashed, upon the ground of this irregularity.

This was a motion to rescind the order of the circuit court, and to confirm the return.

But the Court refused the motion, observing, that whenever it appeared from the return of the commissioners themselves that they had given a widow more than she was entitled to, the proceedings ought to be set aside; for although the claim of a widow's dower is highly favoured in law, yet there are other parties whose interests ought to be protected by the courts of justice.

Rule dismissed.

All the Judges present.

larity.

Columbia,

1802.

Where arbi

trators are not

THOMAS SUMPTER against WILLIAM MURRELL.

MOTION to reverse the order of the circuit court at

guilty of mis- Sumter district, confirming an award.

conduct, nor

have commit

The ground upon which the counsel, Mr. Mathis, rested ted any great this motion, was, that the arbitrators had made a great mismistake, the

openan award,

court will not take in this case, by not giving defendant credit for a family but hold the of negroes sold to the plaintiff, of the value of 175%. sterling, parties to their decision. which mistake was a sufficient ground for setting aside the award in this case, and had been urged in the circuit court against the motion which was made to confirm the award, but he was overruled in his objection. The presiding judge reported, that a certificate was produced from the arbitrators, that they had been of opinion when they were investigating the accounts between the parties, that the negroes in question had been given by Mr. Murrell to the plaintiff in payment for land purchased of him, and, therefore, did not form an item in the accounts for their consideration.

The Judges, after considering this case, were of opinion, that if so great a mistake as that stated by the defendant's counsel had really been committed by the arbitrators, it would have been a very reasonable ground for setting aside the award; but the reason assigned by the arbitrators, shews that they had taken the value of the negroes into consideration, and had been of opinion, that they had been given in payment of a land purchase which did not come before them, and which sufficiently removes the impression as to the alleged fact of its being a mistake or an omission on the part of the arbitrators.

That the court had on repeated occasions set their faces against the opening of awards, unless for misconduct on the part of the referees, or for some palpable mistake or omission, which did not appear in the present case. They were judges and juries of the parties' own choosing, and therefore