V.

public business, and none but trust worthy persons should Abercrombie be employed in such an office. The act of placing a clerk Marshall. in such an office implies a trust, and holds out to the world an idea, that he is a proper person to transact business with, in the line of the sheriff's office: and if a sheriff will place a man in such a situation, unworthy of his confidence, he should answer for it; the public ought not to be deceived by it. There is a wide difference between the private transactions of master and servant, where the master shall only be liable as far as he trusts his servant, and the conducting of a public office for the business of the world.

Rule made absolute on the sheriff, to pay the money into court for the use of the plaintiff.

Present, BURKE, GRIMKE and BAY.

STEPHEN SHACKELFORD against JAMES BARROW.

DEBT on bond to make titles to land.

This was a case tried in Georgetown district, before BAY, J.

It appeared in evidence, that the defendant was, by the condition of the bond, to make good titles to three tracts of land, but no time was mentioned within which they were to be made.

That the plaintiff soon after paid the defendant the consideration money, but he could not make the titles to the land, as there were unsatisfied judgments against him, to more than the value of the land; whereupon the plaintiff brought his action on the bond.

Mr. Falconer, for the defendant, insisted that this action would not lie, as no demand of titles had been made on the

Columbia, April, 1797.

In mutual covenants the payment ог performance by one party

raises an obli

gation on the

other party to perform his covenant

without a demand.

V.

Barrow.

Shackelford defendant before the suit was commenced, and that the defendant in such case, had all his life-time to perform his covenant, unless it had been hastened by such demand. The judge overruled the objection, on the ground that the payment of the consideration money, raised the obligation on the part of the defendant, to make the titles at his peril; and that there was no need of a demand, where such obligation had commenced.

The case then went to the jury, who, notwithstanding this decision of the court, found for the defendant. This was therefore a motion for a new trial, on the ground that the verdict was against law, and the opinion of the judge who tried the cause.

After hearing arguments for and against this motion, the court was unanimously of opinion, that a new trial should be granted; as the verdict was against law, as well as the charge of the judge who tried the cause. That where there are mutual covenants to be performed on both sides, and no time is fixed for performance, in such case either party may hasten it by demand, or by payment, or by tender and refusal; but where one of the parties performs his part fully, from that moment the other party is bound to fulfil his part of it, in like manner. It is then that the obligation commences, in a moral, as well as in a legal point of view, on the part of the one who has not performed his covenant; and where an obligation has commenced, the party is bound to perform it at his peril afterwards.

Present, BURKE, GRIMKE, WATIES and BAY.

JOSIAH CANTY against THOMAS SUMTER.

DEBT on bond.

This was a case tried at Camden, in which it appeared that the bond in question had been assigned over by Josiah Canty, the present nominal plaintiff, to John C. Smith, who was the real bona fide holder; and that on the trial, Josiah Canty was called upon by defendant to prove payment of this bond. He was objected to as an incompetent witness, as his testimony would go to impeach a security, which he had given; the bond had been transferred by him to John C. Smith, in the way of trade for a valuable consideration; and to suffer him to give evidence of payment, would go to destroy the validity of the bond, by shewing there was nothing due on it.

The courts of justice had frequently laid it down, as an invariable maxim, that no man shall be suffered to invalidate his own instrument; if it were otherwise, the consequence would be very prejudicial to commerce, and would go to destroy that confidence which men repose in each other, in their mutual transactions together; which objection the court sustained. The case then went to the jury, and there was a verdict for the plaintiff.

The case was afterwards taken up to the court of appeals at Columbia, upon a motion for a new trial, on the ground of misdirection, but it was refused by the judges unanimously.

Present, BURKE, GRIMKE, WATIES and BAY.

Columbia, April, 1797.

The obligee incompetent

of a bond is an

witness to prove payment so as to

destroy the right of the

assignee.

1 Durn. and East, 296,

297.

Columbia, April, 1797.

If a jury take upon them

selves to exa

mine a witness after

they retire in.

to their room

ground for a new trial.

MOSES THOMPSON against JOHN Mallet.

THIS was a case taken up from Columbia to Camden, on a motion for a new trial, on the ground of misbehaviour in the jury.

From an affidavit made by Daniel Brown, it appeared it is a good that the jury after they had left the court and retired into their room, had taken upon them to send for and examine a witness, who had not been sworn and examined in court, without the leave of the court, or consent of the parties, or their attorneys; though this was not known at the time their verdict was received and recorded in court, but came out after they had been discharged.

See Metcalf's case, 2 Morg. Essays, 14.

The judges, without argument, ordered a new trial, without costs; observing, that this was very reprehensible conduct on the part of the jury, for which they had deserved to be fined, if it had been known to the court before they were discharged.

Present, BURKE, GRIMKE, WATIES and BAY.

Columbia, April, 1797.

FREDERICK SESSIONS against GEORGE BARFIELD.

Where arbi- THIS was an action of debt on an award, tried at

trators take

upon them to Georgetown, in which there was a verdict for the plaintiff. It was afterwards taken up to the constitutional court of

make an a

ward on other

matters than appeals, at Columbia, on a motion for a new trial.

those submit

ted to them

by the bond

In this case, the bond of submission was to abide and of submission perform the arbitrament of the arbitrators therein named, it is a good

ground to set

aside the award. No parol proof should be admitted to vary the import of the terms of submission mentioned in the condition of such bond.

of and concerning a dispute about a horse sold under an execution. The arbitrators, however, took upon them to make their award about other matters, than the dispute about the horse, not mentioned in the condition of the bond. On the trial, parol testimony was admitted, to prove that it was the intention of the parties to submit those other matters, although not fully expressed in the condition of the bond, which induced the jury to find in favour of the plaintiff.

Mr. Falconer, in support of the motion for the new trial, on the part of the defendant, contended, that no parol testimony ought to have been allowed, to prove any matter, not particularly mentioned in the condition of the bond, or in any wise to vary the tenor of it. It ought to speak for itself. That at all events, Mr. Barfield, his client, was only a surety to the bond, no wise concerned in the original dispute, therefore he never could be chargeable for the intent or meaning of the principal, or for any thing not expressed in the bond; otherwise, every security might be entrapped. That a contrary doctrine, would cut up the statute of frauds by the roots, and set every thing afloat, which had been fixed and rendered certain, by that act; and for that purpose, cited 3 Will. 539. Ibid. 371. 1 Will. 34. Powell on Contracts, 431. 1 Bac. 139. 142. 158.

Mr. Johnson, in reply, observed, that the variance arose from a mistake in terms, and that the parol testimony was admitted to explain the meaning of those terms, which the court would always permit in cases of ambiguity: he admitted in the fullest force, the dangerous tendency of suf fering parol testimony to contradict or alter any deed whatever; that the statute of frauds was a wise and salutary act, and should not be impugned in any case; but insisted, there was no such contradiction before the court.

By the Court. It would be a most dangerous thing to suffer either principals or their sureties to be surprised, by