Before RUTLAND, J., at DarlixgtoN, July Term, 1870.

Appeal from aa order directing an attachment for contempt to issue against the Sheriff.

The facts were these: Under the Act of 1866, entitled “ Ail Act to amend the law in relation to tenancies,” (13 Sfcat., 416,) W. E. James and J. J. James instituted proceedings, in January, 1870, before a Magistrate of Darlington County, against Jack Smith and Adam Bristow, and on the 24th January, 1870, the Magistrate issued a warrant, under his hand and seal, directed to Thomas C. Cox, Esq., Sheriff of said County, commanding him to eject Smith' and Bristow, “ and all and every other person whatsoever, in possession of the premises, and deliver ” to W. E. James and J. J. James full possession of the same.

The warrant was lodged with the Sheriff, and he having failed to execute it, the plaintiffs therein applied to, and obtained from, the Court of Common Pleas, for Darlington County, a rule on the Sheriff to shew cause why he should not be attached for a contempt, because of his failure to execute the warrant according to its exigency.

The Sheriff answered the rule, and for cause submitted, inter alia, that the plaintiffs “ have no right to procure an attachment against him for contempt of Court for failing to execute the process of another aud inferior jurisdiction.”

Iíis Iionor overruled the return, and ordered “ that the rule be made absolute, and that the said Thomas C. Cox, Sheriff as aforesaid, do proceed forthwith to execute the said warrant according to its exigency, and that, upon his failure so to do, on or before the 18th day of July iustant, he be fined in the sum, &c., and be imprisoned, &c., till he purge his contempt; and that a writ of attachment do issue to enforce the provisions of this order.”

Thomas C. Cox appealed on the ground, inter alia, that his Honor the presiding Judge had no right to entertain a rule against the Sheriff for failing or refusing to execute the process of an inferior tribunal, or any tribunal except his own Court.

Pending the appeal, the plaintiffs issued an attachment under the order, and Cox was arrested thereunder. Pie applied to the Chief Justice, at his Chambers, at Sumter, for a writ of habeas corpus, Avhieh was granted, and on a return thereto being made he moved for his discharge. At the first hearing, His Hon'or the Chief Justice overruled the motion for a discharge, but on a rehearing he granted it, and filed an opinion and order, dated the 27th August, as follows:

Moses, C. J.. This second application on the part of the petitioner enables me to correct an error which, I now think, I committed in my decision rendered, ore tenus, immediately after the close of the first argument. If I am right in the conclusion which I have reached, I do not regret the opportunity to reform my judgment, according to my present conviction, after some consideration and reflection.

…

Citation profile

How this case has been treated — in progress