
    The State of South Carolina against Sheriff of Charleston District.
    Charleston,
    May, 1817.
    Attachment againstthe Sheriff, for not payiDg OTer money to a party, where other parties disputed his right to receive it, set aside — asthe question of right was not. tried, and this case under very special circumstances admitted to be matter of appeal; but in general, orders of Court directing attachment for contempts.are not matters of appeal, sd as that the execution of the attachment will be suspended thereby.
    This was a rule to show cause why money was not paid over which was alleged to be in his hands, and to Mrs. Mary Jones, executrix of Samuel Jones, to wit, 1750 pounds sterling, with interest from 1st September, 1807, being the amount of a bond due from David and Thomas Bailey to John Champneys, assigned to the testator by Mr. Champneys, upon which judgment had been obtained, and execution taken out and lodged with the sheriff. Mrs. Jones claimed this money as arising from the sale of a wharf called Bailey’s Wharf, mortgaged to secure the payment of this bond, assigned to her deceased husband with three others; which wharf had been sold by the sheriff of Charleston District,, under an execution on the above judgment, after foreclosure of the mortgage in the Court of Common Pleas.
    On the return of the rule against the sheriff to show cause why the money was not paid over according to the-of 3d rule, he assigned the following grounds: “ That the whole amount apparently due upon said bond was demanded, and that he, the sheriff, had received regular notice from Mr. Duncan, who held a mortgage on Bailey’s Wharf, a subsequent mortgage, and next in order of date to that under which Mrs. Jones l claimed, either that nothing was due upon the assigned bond to her deceased husband, or at most only a small balance.”
    That this bond, as well as three others for the same amount, had been originally the property of Mr. Champneys; their payment was secured by a mortgage of the wharf before mentioned. By Mr. Champneys the mortgage had been foreclosed, and a judgment obtained on the bonds. That in the month of July, after the sale of the wharf, Mr. Champneys entered satisfaction upon the judgment, before this rule was taken out against the sheriff When Mrs. Jones''s bond was produced, it appeared to have been assigned over generally, without the name of the assignee being expressed in the assignment, and without any date to show when it was assigned, as' will appear by a reference to the assignment on said bond. It was therefore objected that this assignment might have been executed after satisfaction had been entered on the record.
    Mr. Jlndrew Kerr, the witness to this assignment, was called by the counsel of Mrs. Jones to obviate this objection, and to prove its date. The opposite counsel offered to prove at the same time, by Mr. Kerr's testimony, that the bond was wholly or nearly satisfied at the time of the assignment. He also offered to prove the same fact by the affidavit of Mr. Champneys, but that his honour the presiding Judge would not permit such testimony to be produced, on the ground that it could be adduced in a Court of Equity, because the bond upon its face was assigned over generally, having no receipt upon it; that therefore tio testimony at law could be gone into to show that the assignment, according to the agreement and understanding of the parties, was intended to convey a right to recover ño more than what was actually due upon the bond when assigned.
    After his honour had thus decided, the rule against the sheriff was made absolute, and he tvas ordered to pay over the money to Mrs. Jones,
    
    . In consequence of notice having been given to the sheriff that this decision would be appealed from, he did not pay over the money. An attachment was then moved for without a previous rule, and granted, although the Judge had received notice of the intended appeal from his de-cision; his honour remarking, that in similar cases . against the sheriff, no appeal could be had from the Circuit Court to that of the Constitu■tional Court. In consequence of which, the present case has been brought forward to this Court, upon the following grounds:
    1. That the Judge determined contrary to law; that the evidence of Mr. Kerr, and the affidavit of Mr. Champneys, were inadmissible.
    2. Because the Judge determined, that in a case like this against the sheriff there was no appeal from the Circuit Court to this Court.
    3. That admitting an attachment would lay against the sheriff in such a case as the present one, it could not legally be done until after a rule on the sheriff, to show cause why the attachment should not issue against him, after interrogatories administered to him. The rule was made absolute at Charleston in January Term, 1817, before Mr. Justice Grimké.
    
   Bay, J.

delivered the opinion of the Court.

I have considered the foregoing case under its different bearings, and have no hesitation in saying, it was a very proper case for the interposition and consideration of a Court of Equity, where full and complete justice could have been done to all the parties concerned. But as it has come up before this Court, we are obliged to dispose of it in the best manner we can, agreeably to common law rules.

1st. Under the first ground, then, it appears to me absolutely necessary, in a great variety of cases, where bonds and mortgages have been given to secure large and eonsidei’able sums of money, and where transfers have been made of some of the specialties so secured, and either full or partial payments have been made on them, for the Court to examine into and investigate them, previously to making any final and decisive order concerning the sums really due and owing to the parties interested ; and in doing so both parties, plaintiffs and defendants, have an equal claim on the justice and indulgence of the Court, and facts ought to be well ascertained before the rigours of the law are finally enforced. In this case a very considerable sum of money was dernanded of the sheriff by Mrs. Jones, and it was •• ' J \ . . contended on her behalf, that'the satisfaction entered by Mr. Champneys on the judgment was fraudulent as to her bond, and that it could only be construed pro tanto ; and however it might operate as to the other three bonds, if could riot as to Mrs. Jones's, as it was alleged that it was assigned ‘ before the satisfaction was entered; and in order to prove this fact, a witness was called to prove that it was previously assigned — so that, so far Mrs. Jones had the benefit of Mr. Kerr's testimony.

. Mr. Duncan, the subsequent' mortgagee, and next in order, had also an interest in the money in the sheriff’s hands,- ánd he, on his part, allegedfhat the whole, or thé greatest part, of Mrs. Jones's bond, had been paid off, and wished to exáinine Mr. Kerr on this subject, and to produce the affidavit of Mr. Champneys; but this privilege was refused, and the whole of the money was ordered to be paid over to Mrs. Jones, without hearing the other party. ' -

It appears to me, therefore, whatever objections there might have been to the affidavit of Mr. Champneys, (and I am rather inclined to think his testimony was exceptionable,) there could be none to Mr. Kerr's. See Gantry and Sumpter's case, 1 Bay. Upon this first ground, therefore, I think this decision was premature, without fully examining into the nature of their payments. "With respect to the right of appeal, which is the

2d ground, I beg leave to observe, that the Constitution has placed this right of appeal upon a very broad basis. It appear^ to me to be circumscribed by nothing but such circumstances as are absolutely necessary for the despatch of business in the due course of the administration of justice; and without which the laws could hot be duly and speedily executed. To suffer appeals in such cases would be to destroy the energy of the law at every stage, and to defeat the very ends and designs for which all laws were formed. Under this head I would be understood to mean and intend all legal proceedings in a Court of Justice before verdict or judgments; all refusals in persons attendant on a Court of J ustice to do and perform their duties, and in paying proper obedience to the rules of the Court; all open and indecent behaviour in a Court of Justice; all cases of bail; and in restraint of freedom, and in many other instances which at this time it is unnecessary to enumerate, but which may be found under the head of Con-tempts, and other appropriate titles, in all the books upon that subject. But in all cases where the great and fundamental rights of the citizens are eventually concerned, or the rules of property involved, these are secured by the Constitution to every citizen; and tire right of appeal is, in my opinion, inviolably secured. h ’ present appears to me to be one of that description, and I therefore will not enlarge further upon this subject.

Attachment against the Sheriff far omission of duty is in the nature of criminal procedure, and is at the suit of the State. Butparty injured has also civil remedy.

3. The third ground is one of practice, and ought to be well understood, and well defined, as well for the benefit of the suitors in Court, as for the information of the sheriffs of the country. It is certainly the duty of a sheriff, as well as every other officer, who undertakes the duties of an office, to perform them faithfully and punctually.; and if he does not do those duties, then he. becomes responsible. This responsibility is of a twofold nature: to the state as a public officer, and to the individual who suffers by his misconduct. To the state he is responsible for not performing the duties of his office; and, therefore, this rule was brought against. the sheriff, very properly in the name of the state, and the case placed on the docket of state cases; and the proceedings are usually in a summary manner, by attachment at the suit of the state. To the individual he is liable by action at law, for consequential damages, in all cases .of neglect, or omission in office, in which a Jury will give a verdict, commensurate with the nature of the injury the defendant has sustained by the misconduct of the sheriff! In all cases, however, where the Tacts of the ease are plain and obvious, and where they can be ascertained to a great degree of certainty, and it is evident and notorious that a sheriff has been negligent, or obviously refuses to do his duty, (Hob. 62, 264,) in such cases the Court will, for the sake of speedy justice, punish by attachment. Noy, 101, F. N. B. 38. But, in and difficult cases depending on law or f^ct, or on both combined, the Court will leave the parties to their remedies at law, when an opPortunity be afforded of fully investigating those facts and circumstances, agreeably to the ru^es of law, and where each party will have justice meted out to them by the country. 1 B. C. Rep. 6. 1 Bac. 283.

a^uinvoiTCdhing£HB summary “mide ?ytoehueremedy ¿y regular suit

Mode of proceeding on attachments.

Attachments are usually applied for on a rule, in the first instance, calling on the party to show cause why an attachment should not issue. This rule is predicated upon an idea that probably the party may not be guilty of the contempt complained of, and that he may have some good reasons for not performing what is alleged against him. It is founded upon the immutable principles of justice, and the nature and reasons of things, as no man ought to be condemned without a hearing, however summary the proceedings may be, and in some cases interrogatories are propounded, that the party called upon may have an opportunity of answering them. 1 Bac. 286. If, upon the coming in of this rule, no good cause is shown by such party, or if he refuses to answer the interrogatories propounded, then a rule may be made for the attachment to issue, unless the party will perform the duty required; but this is seldom done without giving the person a reasonable time to perform this duty before the attachment issues for imprisoning his body,, which is done upon the humane supposition that the party. did not wilfully or designedly offend against the laws of his country, or the rules and practice of the Courts, but through excess of caution or doubts respecting his duty on that particular occasion.

Yancey and Drayton, for the motion.

Gadsden, contra.

tjpon the whole, therefore, I am ..of opinion that, the proceedings in this case against the sheriff should be set aside, and that the parties, should be left to their ulterior remedies for and against each other.

. The other Judges concurred, except Mr. Justice. Colcock, who wasabsent in the District Court when this case was argued, and. gave no opinion», 
      
       This mode is now imperative in all cases of contempt whatsoever, by an act “ to prevent any citizen of tliis state from being sent to gaol, until he be heard by himself or counsel,” passed 21st December, 1811.
     