
    
      The Treasurers vs. Witsall. The same vs. Oswald and Rives, executor and executrix.
    
    1, In an action of debt against the securities of a sheriff on his official bond, a certified copy of the bond produced and given in evidence, under the Act of the Legislature, (vide 6 Stat. at Large, 380,) is enough to satisfy proferí of it in the declaration.
    2. For the purpose of shewing a balance on the books of the Treasury against a sheriff, for money received by him during his term of office on account of the Treasurers, a certificate of the Treasurer, stating a balance against the sheriff, is not competent evidence under the Act of the Legislature, (vide 5 Stat. at Large, 411.) To be within the Act, there must be a copy of the entries malting up the account from which the balance arose.
    
      Before O’Neall, J., at Walterboro, April Term, 1842.
    Report of the Presiding Judge.
    These were actions of debt against the securities of sheriff Oswald on his official bond, dated 25th January, 1817.
    
      In these cases a special demurrer was sustained a year ago. At the last term of the Court of Appeals, in February, the decision below was reversed, and leave given to the defendants to rejoin, which was done by a traverse of the replication, as the solicitor, Mr. Edwards, stated, on the Friday before court. He put in the similiter, and the cases went upon the docket during term time, at the instance of the plaintiffs. When the cases were called, the solicitor would have continued them; the defendants urged a trial. The solicitor stated no want of evidence, except that he had not a copy bond. It was proposed by the defendants to use one which was in a case against the executrix of the sheriff, tried many years ago. This was procured, and the cases were ordered on.
    The declaration made proferí of the bond. The defendants pleaded, 1 st, non est factum. The plaintiffs produced and gave in evidence a copy of the sheriff’s bond, certified properly.
    The defendants pleaded, 2d, performance. The plaintiffs replied, the receipt of a large sum of money by the sheriff, for and on account of the Treasurers, during the sheriff’s term of office.
    To sustain this assignment of breach, the solicitor gave in evidence a certificate of the Treasurer, stating that there was a balance on the books of the Treasury against sheriff Oswald, during his term, from 1817 to 1821, of $922.
    The comptroller made a similar certificate, which was also in evidence.
    The plaintiffs also gave in evidence a recovery by the Treasurers against the executrix of sheriff Oswald, for $3,859 62, obtained in 1829; but for what specific breach of the bond that recovery was obtained, did not appear.
    The solicitor also relied upon a resolution of the Legislature, passed December, 1828, giving time to the executrix of sheriff Oswald to settle his account for tax executions. A motion was made for non-suit by the defendants, on two grounds : 1st. Under a profert of the bond, that the copy was not enough to prove the “factum.” 2d. That the breach of the condition of the bond was not established by competent evidence.
    As to the first, I thought that the Act of the Legislature, making the copy evidence, justified me in holding that it satisfied the proferí. But as to the second ground, I was reluctantly brought to a different conclusion.
    The Act of the Legislature, 2d Faust, 428, provides that “ An exact copy of any entry from the books of either of the Treasurers, certified by the Comptroller, shall be received and admitted as evidence in any action or suit already instituted, or to be hereafter instituted, in any court of law or equity within this State, in as ample a manner as if the original books of the Treasurers were produced.” I thought a certificate of a balance struck was not a copy of an entry in the Treasurer’s books. To be within the Act, there must be a copy of the entries making up the account from which the balance arose.
    The motion for non-suit was granted, and the plaintiffs appealed, on the annexed grounds:
    Because the cases were not docketed until the third day of the term, and the plaintiffs’s attorney was not notified of the decision of the Court of Appeals until the day before the sitting of the court, and was taken by surprize.
    Because the evidence offered ought to have gone to the jury, and was sufficient in law.
    Because, wherever the State is a plaintiff, a non-suit cannot be ordered.
    Because the decision, in other respects, is contrary to law.
    Edwards, solicitor, for the motion; A. Rhett, contra.
   Per curiam.

In this case this Court concurs in the judgment below; and, for the reasons, given by the Judge below for his decision, the motion here is dismissed.  