Shoolbred

V.

of Charleston.

That the demolition of those houses was essentially necesCorporation sary for the purpose of opening Meeting-street to the city boundary, and was for the convenience of the city. The money requisite, therefore, to defray the expense, should be raised by a tax or assessment on the taxable property of the citizens within its boundary. That the continuity of the road, and the advantage which the adjoining parishioners were to derive from it, made no sort of difference, as the advantage would be mutual on both sides. This did not, therefore, lessen the obligation of the city to lay open and keep in repair the streets within its own jurisdiction. Our high roads were connected together and continued from the sea coast to the mountains, and through the state from North Carolina to Georgia, and it might as well be contended, that the man in the remotest part of the state should contribute his quota towards the expense, because he occasionally made use of Meeting-street, or any other highway at either extremity of the state. To avoid this inconvenience, the policy of our road laws and highway system had wisely provided against it, and had directed that every separate and distinct portion or division of the state should make and keep its roads and bridges in repair, within its own limits and jurisdiction.

Rule for a mandamus made absolute.

Present, BURKE, GRIMKE, WATIES and BAY.

WILLIAM GREENWOOD against The Executors of
JOB COLCOCK.

UPON a rule on the sheriff of Charleston district, to shew cause why he did not return the execution of fi. fa. which had issued in this case, and also why he did not pay into court the money he had levied thereon.

Upon shewing cause, the sheriff stated that the property he had levied on, by virtue of the above execution, was claimed at the time of sale by Major Butler, and that his agent, Mr. Delamotte, had purchased it in, and held it until the dispute about the right to the property was determined; and, moreover, that Mr. Delamotte, the agent of Major Butler, had given him, the sheriff, a bond of indemnity for not returning the execution.

But that it was

In this case, the Court was of opinion, that where a sheriff sells property, by virtue of an execution, which is claimed by a third person, not a party to the suit, the rule was, for him to return the money into court to abide the event of the dispute, and then to make his return, conformably to the decision, on the back of the execution. very wrong, and contrary to every principle of justice, to suffer such party to get possession of the property, or to change the position of the parties by his own act, or to make himself a stakeholder until the right was determined. Burr. 23. 29. Dalt. Comp. Sheriff, 247. 1 Keb. 901. The court was further of opinion, that the bond given to the sheriff, by the purchaser in this case, to indemnify him for not returning the execution, was void in law, as it was evidently given to the sheriff to induce him to omit doing his duty, and it is very clear that all such contracts are void. Powell on Contracts, 186. 194, 195.

1

It was therefore ordered, that the sheriff do proceed forthwith to resell the same property at the risk of the pur

October, 1790.

In sheriffs sales, where

the property

is claimed by a third per

son, the she riff should re

turn the mo ney into court until the right

is determin

ed, and then turn on the

make his re

execution ac

cording to the

decision.

A bond given.

to sheriff,
to indemnify
him for not
returning an
execution, is

null and void

by the com

mon law.

Greenwood

V.

Executors of

Colcock.

chaser, and return the money into court, subject to the future order thereof, when the merits of this claim shall be determined.

Present, BURKE, GRIMKE and BAY.

October, 1796.

HANNAHAN against The Executors of HANNAHAN.

Upon enter

MOTION for leave to issue an execution on a judgment

ing up a judg- on a sci. fa. on the last day of the court.

ment on a

sci. fa. the

plaintiff is en

This was opposed, on the ground that the 12th rule of titled to his court, founded on the act for the amendment of the law,

execution in

not to be de

where service

stanter, and is directed that no execution should be issued until ten days layed 30 days, after judgment, where the service of the original writ was of the original personal; or until the expiration of thirty days after the mowrit was not tion for judgment, when the service of the original was not the original personal, but left at the defendant's house or place of residence, or most notorious place of abode, as was the case in this suit.

personal, as in

sait.

But by the court it was resolved, that the plaintiff is entitled to his execution instanter, on a judgment on a sci. fa. because, in a cause of this nature, there can be no grounds alleged for surprise or undue advantage, or any thing which could affect the merits of the case, as the defendant had an opportunity of availing himself of every thing of that kind in the original suit, which was the reason for allowing thirty days to defendant to move for a new trial, or in arrest of judgment; so that nothing but payment or satisfaction can be pleaded to a sci. fa. to revive a judgment, as was determined in the case of Gibbes and Wainwright, in Rep. vol. 1. P. September, 1795. And if the plaintiff has given a year and a day of indulgence after the original judgment, and no pay

See Bay's

483. Riley's edit.

ment or satisfaction pleaded, there can be no reason assign- Hannahan ed why he should be kept longer out of his money.

The motion was, therefore, granted accordingly.

All the judges present.

V.

Executors of
Hannahan.

ALEXANDER BRODIE against The Hon. JOHN RUтledge,
Chief Justice of the State of South Carolina.

THIS case came before the judges in the form of a petition or complaint against the prothonotary, for refusing the plaintiff a writ under the seal of the court of common pleas.

The petitioner in this case stated in his petition, that having, as he conceived, a good cause of action against the late chief justice, while he sat on the South Carolina bench, before his advancement to the chief justiceship of the United States for some opinion he had delivered in court, had determined on bringing his action for damages against him, and for that purpose had applied to the different gentlemen of the bar to commence the action, but that they had all refused to be concerned in it. He then stated, that he had resolved on bringing it in propria persona, and for that purpose had applied to the prothonotary of Charleston district for a writ under the seal of the court, in common form, to call the defendant to answer in damages for the said supposed injury, but that he had been refused such writ, which he said was a denial of justice, and therefore prayed the aid of the court on this behalf, and that the usual process might be awarded him.

It was intimated to the judges, that the petitioner at times was in a deranged situation; but as that was rather a

Brodie

V.

Rutledge.

doubtful point, they thought it best to declare their opinion upon the subject, lest it might possibly be supposed, that as it concerned one of the members of their body, they had declined giving any opinion as to the prayer of the petition. They therefore gave it as their unanimous opinion, that the prothonotary of the court of common pleas had acted judiciously and properly in refusing the petitioner the process, as he had no cause of action, by his own statement. That it was a well known rule of law, "that no suit will lie against a judge for any opinion delivered by him in his judicial capacity, either supreme or subordinate. But that he was liable for misdemeanors in office, and subject to impeachment for misconduct, if he had misbehaved; of which, however, there did not appear to have been the shadow of grounds on the present occasion.

The petition, therefore, and the motion founded upon it, were dismissed as frivolous and without foundation.

All the Judges present.

Charleston District, 1796.

Battery of a slave is ac

tionable by

SIMS WHITE against JAMES CHAMBERS.

SPECIAL action on the case, for beating the plaintiff's

negro man.

the master ; It came out in evidence on the trial, that the negro in though the

can maintain

slave himself question, had the care of his master's fishing canoe on Sullino such ac- van's island, when the defendant went down to the landing If a slave is place where it was, and said he would take it, and go out insolent to a fishing in it. told him he could not have it, as

tion.

freeman, he

ought in the

The negro

first place, to complain to the master or other person having charge of such negro slave, who ought to give him redress. But if the master, or person having charge of such slave, refuse redress, then application should be made to a civil magistrate, who was bound to redress the injury. But he ought not to take revenge by his own arm.