If a sheriff takes a house TEASDALE against KENNEDY, Sheriff of Charleston SPECIAL action on the case, for taking insufficient holder, in bail. ap parent good circumstan Taylor, for the plaintiff stated that he had commenced a ees, as bail, suit for the plaintiff, in 1788, against one Wagner, of Georgia. liable to a spe- That an affidavit of the debt was annexed to the writ, and cial action, he will not be though the it was indorsed for bail, to the amount of 76/. 6s. 3d. That bail turn out insolvent. But one M-Farlane became bail for the defendant in the action. if he takes One notorious Judgment was regularly obtained against the defendant, and ly insolventone in doubt afterwards, on a scire facias, against the bail, who turned out insolvent. This was therefore an action instituted against the defendant, for taking insufficient bail, by which means the plaintiff lost his debt. ful circum stances or one not a fix ed resident, he will be lia ble. M-Farlane himself was produced as a witness, who proved that at the time he became bail, he was a shopkeeper, paid 70%. a year rent, had a store of goods, and a landed property, which he had since sold for 2001. and further, that he had a bond and mortgage put in his hands to counter secure him. Pinckney, for the defendant, urged, that as sheriff of the district, he had done all that was incumbent on him as a public officer to do. He had taken a man as bail, who was at the time, in apparently solvent and in good circumstances; a householder, and one that had, to every appearance, a permanent residence. That it was not the duty of a sheriff, to inquire minutely into a man's private concerns, or to warrant his solvency. He conceded, that if a sheriff will take as bail, men notoriously insolvent, men in doubtful circumstances, or men who have no fixed residence ; that in such a case he would be liable; because it would not be using that diligent attention and caution which the law has imposed upon a sheriff as a duty annexed to his office. So, on the other hand, were a sheriff to refuse bail, where the party offering appeared to be in good circum stances and repute, it would subject him to a special action on the case, for oppression in office. That at any rate, it was the duty of the plaintiff to have taken out a rule upon the bail, to make him justify, and if he refused, then it would have been a good ground for the sheriff to have taken better bail. Taylor, in reply, said, that the reason why he did not call upon the bail in this case to justify, was because he heard the sheriff tell the plaintiff, who complained of the insufficiency of the bail, that he need not be afraid of his debt, as he had in his hands, property of Wagner's to three times the amount of it, and desired him to go on and get his judgment. In consequence of which declaration, he rested satisfied, and went on with the usual proceedings, both against the principal and bail, till they turned out insolvent; and now contended, that the action would lie against the sheriff on two grounds: first, for taking insufficient bail; and secondly, on the ground of the sheriff's assurances that he had property more than enough to satisfy the plaintiff's demand. By the Court. Every man who undertakes an office, ought to perform the duties of it strictly, and to use all due diligence and care in the execution of it; particularly a sheriff, who is an officer of great trust; and if any man, on account of his omission or neglect, suffer by it, he is liable in damages. But on the other hand, where he discharges. his duty faithfully, he is highly protected in law. In the present case, the law has been very properly stated on behalf of the defendant. If a sheriff takes as bail, a man who is notoriously insolvent, in doubtful circumstances, or without a fixed residence, or the like, he is answerable. But where a man is a householder, in apparent good circumstances, to refuse such a man as bail, would be an abuse of office, for which he would be answerable. Here it does not appear that the sheriff acted improperly in taking the bail he did. As to the other ground, if the jury should be of opinion that the plaintiff lost his money by the assurances 1793. Teasdale V. Kennedy. 1793. Teasdale V. Kennedy. of the sheriff that he had enough in his hands to pay the debt, they may charge him; but if it was only a conjecture that he would have so much, or if the funds were such that he could not detain them, it would be hard to make him liable. Verdict for defendant. September Term. Selling for a TIMROD against SHOOLBRED. THIS was an action of assumpsit, brought for the value sound price, of a family of negroes sold at public auction, viz. a fellow warrants a gainst all called Stepney, a ploughman, his wife, a young wench, their faults and de or unknown And although a not man warrant yet he had disorder in feets, known daughter and her child, bid off at 170%. It appeared, in to the seller. evidence, that Stepney, the ploughman, broke out with the does small-pox, the day after the sale, and died; and, consethe lo vity quently, must have taken the infection previous to the day of a negro, of sale. The defendant offered, before this action was the seeds of a commenced, to pay for the other negroes, provided the the plaintiff would deduct the price of Stepney, who was the principal object of the purchase, or to return the others of the family; but the plaintiff refused to accept either of these proposals, and chose to rely on his action for the whole price. It was also proved that the negroes were taken from a house where the small-pox had been, but it did not appear that the plaintiff knew that either of these negroes had taken the infection. hin at Ward, for the defendant, argued, that it had been repeatedly determined in this court, that soundness of price amounted to a warranty of soundness of goods, and that the juries of the country were bound, in justice and common honesty, to support and maintain this doctrine; otherwise, innumerable frauds might be practised by one citizen on another, in their usual transactions. That fraud might arise from circumstances as well as from premeditation, in one of the parties in the contract. That although the plaintiff might not have known, at the time of sale, the defect of the negro, yet, if he had the infection at the time, (though unknown,) it would be a fraud on the defendant, to oblige him to pay for a dying negro, who had the disorder at the time of purchase. That there was a manifest distinction between an action for deceit, and assumpsit. The former implied a knowledge of the defect, and an imposition on the part of the seller; consequently, vindictive damages might be given. The latter supposed that the defect might be unknown to him; in which case, the value only was recoverable. That the defendant, in this case, acted only on the defensive; but whatever was good ground for an action, if the money was paid, was good ground of defence when a demand was made for the purchase-money. see. Marshall and Lee, in reply, urged, that this was a casualty that human prudence could neither guard against nor foreThat the plaintiff had no knowledge of the indisposition of the negro; therefore, there could be no fraud on his part. That if a seller was to be made answerable for every accident or indisposition to which a negro might be subject after a sale, there could be no such thing as a valid one; every contract of that kind would be liable to be set aside. Such sales would become the constant sources of litigation, of which it was difficult to foresee any end. That the kind of warranty which the receipt of a sound price raised in law, on the part of the seller, on the sale of a negro, or other property, was of a two-fold nature: the first relates to the title, that it was a good one; the second to the qualifications, that the negro answered the description given of him. But it could never be construed so as to extend to longevity, or that he should live an hour or a day after the sale. The Court. (Present, BURKE, J. and BAY, J.) In every contract all imaginable fairness ought to be observed, especially in the sale of negroes, which are a valuable species of property in this country. It has been decided, often, in our courts, that selling for a sound price, raises, in law, a 1793. Timrod V. Shoolbred 1793. Timrod V. Shoolbred. warranty of the soundness of the thing sold; and if it turns out otherwise, it is a good ground for the action of assumpsit, to recover back the money paid. Powell, 150. This warranty extends to all faults, known and unknown to the seller; and although, in general, it principally relates to title and qualifications, and not to, longevity, yet, in some cases, it ought to be construed to extend to the latter. For if the negro sold had about him, at the time of sale, the seeds of a disorder generally difficult of cure, and which occasioned his death, it would be unreasonable to say that the purchaser shall sustain the loss. Though if the disorder had been contracted afterwards, it must be at the risk of the purchaser. The jury returned a verdict for the plaintiff, deducting the amount of the negro, Stepney. The Administrator of BELL against The Administrators of HUGGINS. DEBT on bond, dated the 18th May, 1773, for 1,000 old currency. Pinckney, for the defendants, stated, that the bond in question was given for a tract of land on Santee river, purchased by the intestate, Huggins, in his life-time, and that the indenture of release was dated on the same day with the bond. That part of the land in question, which was valuable rice swamp, was claimed by the heirs of one Daniel, deceased, by virtue of a grant, so long ago as the year 1705, and that Bell, the seller, claimed under a grant many years subsequent to Daniel's. That on the deed from Bell to Huggins, there was a receipt indorsed in a very special manner, by which the grantor promised to refund the con |