
    George Whitmore against David Rumple. Frisk against The same.
    wherean'ieriff confines anti diets Stt ¡s ih¡ dcS'toTc’ie11 iMCtolseSd S V
    These were rules against the defendant, as ° Sheriff of Orangeburgh, to show cause why he not pay over a balance of moneys in his hands, made on an execution, in the name of one °f the plaintiffs, against George Dash and James Toole.
    
    The Sheriff showed for cause, as to a part of the sum, that he had detained it for his fees, a bill of which he presented, charging 25 cents per day for dieting negroes, and 50 cents per day for keeping and feeding horses, taken in execution, and the debt being more than £100, he charged 2% per cent, on the first £100, and 1 per cent, on the excess, and the only questions were, whether he was entitled to these charges or not ? The Circuit Court decided, 1st, That for dieting negroes he was only entitled to 8c? per day. 2d, For keeping and feeding horses 25 cents per day. And, 3d, That the sum or debt being more than £100, he was only entitled to 1 per cent, commissions on the aggregate. And a motion is now made to reverse that decision.
   The opinion of the Court was delivered by

Mr. Justice Johnson.

1st. It is true that the fee bill, as it is usually termed, or, in other words, the act of Fehruary, 1791, (1 Brev. Dig. 344. 1 Faust, 12,) allows only 8c/for dieting negroes or other slaves; but the act of 1808 provides, that for each negro confined and dieted in any gaol of this state, 25 cents per diem shall be allowed to the Sheriff who shall have charge thereof. Now, from the report of this case, it does not appear whether the negroes in this case were or were not confined in gaol; if they were, he was unquestionably entitled to 25 cents per day, and I think I am authorized to presume that they were, (as without it the Sheriff would have incurred a risk which he was not bound to do,) unless the contrary appears.

2d. As there is no specific provision by law for the charge of keeping horses, and is only included in the general provision, that all necessary expenses are to be allowed in addition to those enumerated, (1 Brevard's Dig. 344,) it must always remain a matter of discretion with the Court, and must depend on time, place,' and circumstances ; which having been, as I am bound to presume, discreetly exercised, unless the contrary appears, I think conclusive.

3d. The act of February, 1791, above referred to, (1 Brevard's Dig. 344,) provides, that the Sheriff shall be allowed “ for levying an execution on the goods of the defendant, and selling the same; for all sums, when the debt does not exceed £100, 2|- per cent, commissions; and for all sums, when the debt exceeds £100, 1 per cent. The act is so explicit that I confess I árüat a loss for arguments to prove, that when the debt to be collected exceeds £100, the Sheriff* is only entitled to 1 per cent., unless the maxim ita lex scripta est, will avail me.

I am of opinion, therefore, that the motion ought to be granted on the first ground, only so far as relates to the difference between the sum allowed for dieting negroes, and the charge made by the defendant, and that the rule shall be made absolute for the remainder.

GrimJcé, Bay, JVoii, Colcock, and Cheves, J. con-* Curred.  