1794

Geter

V.

Commission

co Inspection.

power is given by an act, to justices of the peace or commissioners, it must appear that this power has been strictly pursued. And the proceedings must be, as nearly as possible, according to the course of trials before juries at ers of Tobascommon law; as these justices or commissioners are, on these occasions, put in the place both of judges and jurors. The party accused must be summoned; there must be a specific charge against him; and he must have time and opportunity of being heard in his defence. The witnesses against him must all be on oath, agreeable to the rules of law, and reduced to writing, or at least so much as is necessary to the conviction. And in cases of conviction, there ought to be record of it, under the hands and seals of the justices or commissioners, in which so much of the testimony must be set forth, as will bring the offender under the terms of the law, and evince that they have not exceeded the powers given them by the law. If this is not done in such convictions, the common law will break in upon them, and level all their proceedings.

Therefore, ordered, that a mandamus do issue to the commissioners, to restore the present applicant to his of

fice.

WIGG against The Executors of GARDEN.

May Term

Where a bond is given payable in indents,

the true measure of dama-. ges is the va Jue at the

THIS was an action brought upon a bond payable in indents; and the jury in making up their verdict, estimated the value of the indents at the time they were to have been delivered. Holmes now moved for a new trial, on the ground that time they the jury had gone upon a mistaken principle, viz. that they been deliver ought to have given the value of the indents at the time the the value at contract was made, and not at the time it was to have been making the

were to have

ed, and not

the time of

contract.

1794.

Wigg

V.

The Ex'rs of
Garden.

performed; which, he contended, was the true measure of damages.

Pringle was going into his reply, when

The Court (present, RUTLEDGE, Ch. J. GRIMKE, J. WATIES, J. and BAY, J.) stopped him, and said it had been determined over and over again, that in all cases where a bond or agreement is entered into for the delivery of a specific thing, the true measure of damages was the value of the See this case, thing at the time it was to be delivered. The case of Davis v. The Executors of Richardson, was full in point, and had been decided on wise and legal principles; and many others

ante.

since.

Rule discharged.

May Sessions.

A negro is

one of the

The STATE against THACKAM and MAYSON.

THE defendants were indicted for a riot, in entering inpersons who, to the plantation of Colonel Gervais, at twelve o'clock at in contempla- night, in January last, and breaking open an inner room may, with in a kitchen, and taking away in a tumultuous manner, sunwhite men, commit a riot dry negroes, &c. It appeared in evidence, that they took

tion of law,

A sheriff must

not make le- a negro man with them, who was armed as well as the de

vies at mid

night, or im- fendant, and that they were the only persons present when proper hours, this outrage was committed.

or he will be

deemed a

trespasser;

The defendants justified under an execution, which unless under Thackam, who was a deputy-sheriff, had in his possession, eircumstan- to seize the property of one Purvis, of Ninety-six district;

very special

ees.

A sheriff may and alleged, that the negroes in question, were the proJustify break

ing open doors of inner rooms, &c. to reduce property into possession, if he can get peaceable possession or admission into the outer door.

perty of Purvis, and had been bound by a previous levy, at the suit of Andrew Johnston. Gervais had taken them by virtue of a mortgage; but this mortgage was (as was conceded) subsequent to the lodging of the first execution in the sheriff's office.

After the evidence for the prosecution was finished, which fully proved the fact of the defendants' going on the plantation at the hour mentioned, with the negro armed, and taking away the negroes, &c.

Harper and Holmes took an exception to the indictment, and contended, that the first count in it was not supported.. It was necessary, they urged, that three persons should be present at the commission of a riot; and that a negro slave was not in point of law, such a person as could be capable of committing this offence, being under the direction and control of his master, who might take upon himself the offence. And as not more than two white men were present, it could at most, be considered only as a trespass, (even supposing they were not justifiable in going on the plantation, at the time and in the manner proved,) and not a

riot.

The Court, (present BURKE, J. WATIES, J. and BAY, J.) after hearing the attorney-general in reply, were clearly of pinion, that a negro was, in contemplation of law, such a person as was capable of committing a riot, in conjunction with white men. That it would be highly improper to suffer a white man committing an enormity, to screen himself under pretext that one of the party was a negro. Besides, it is evident, that a negro was one who was capable of committing an injury. Those were the persons the law had in view, in cases of riots; and that it was not necessary, men should be possessed of civil rights, to make them amenable to justice for these offences.

The counsel then contended, that it was a lawful act the defendants were engaged in, and that they had a right to enter the plantation of Gervais to seize the negroes, at any time they thought proper. That negroes being a species.

1794.

The State

V.

Thackam and
Mayson.

of property, that had a volition or power of secreting themselves when they thought proper, or whenever their owners or masters gave them directions for that purpose, it might often happen that no levy or seizure could be made, unless sheriffs' officers had a power of surprising or seizing them at night. That therefore, both the law and policy of the thing, well justified the exercise of such a power, even in the dead of night.

Pringle, Attorney-General, replied, that to give a legal sanction to the exercise of such a right, would put it in the power of persons, under the colour of legal authority, to disturb the peace and tranquillity of families, at improper hours; which would necessarily call forth their resentments, and create tumult, and perhaps bloodshed. That the law would by no means warrant a sheriff in making these seizures in the dead of night; for they might and ought to be made in the day time, and at the usual and proper hours.

The Court were of opinion, that although the act of the sheriff's officer, in going to make the levy or seizure of the property, was a lawful act; yet such levy or seizure ought to have been made at the usual and customary hours of doing business, and not at midnight, when the family had all been at rest. That this therefore being the case, although it would have been lawful at proper hours, yet being done at the time, and in the manner proved, it was certainly an outrage upon Colonel Gervais's family, and as such, might well be considered as a riot. The court, however, in this opinion, did not wish it to be understood, that it was in no case legal and proper for a sheriff to seize negroes at night; for cases might happen, where there would be a failure of justice, if it were not permitted.

The Court were further of opinion, that if a sheriff can get peaceably into the outer door of a house, he may break

open inner doors of rooms, or other places, to reduce the property into his possession.

The jury found the defendants guilty; but as it appeared they thought they were on a lawful errand, and had no intention to commit a riot, the court fined them five shillings each.

1794.

The State.

V. Thackam and Mayson.

BLAKELY against BRADFORD.

September
Term.

A magistrate under the act has no right,

to issue an at

of assembly,

a

gainst the goods, &c. of a person, who, at the time of issuing it, is

actually out of the state; but only against the goods, &c.

of those who are in tran

THIS case was, that the defendant, who was a cabinet. maker in Charleston, and carried on an extensive trade in that line, had gone to Philadelphia to engage journeymen. While he was absent, Blakely, the plaintiff, applied to a tachment magistrate, and obtained from him a writ of attachment, under the act of 1788, amending the attachment law; and by virtue thereof, had attached goods and wares to a large amount, and by that means, had drawn upon the defendant divers other creditors, who otherwise would have waited till his return. Taylor now moved to have this attachment quashed, on act of remo ving. two grounds: First, because the clause in the county court act to which the law of 1788 refers, and which gives jurisdiction to magistrates to issue attachments, is confined to persons in transitu, and does not extend to those who had previously left the state. Secondly, because it was signed by a magistrate, and tested by the CHIEF JUSTICE, which he alleged was irregular; as no writ could be tested by the CHIEF JUSTICE, unless under the seal of the court.

The Court, however, waived going into the irregularity of the attachment; but took it upon the first ground, and were clearly of opinion, that the proceedings ought to be

situ, or in the