Kilpatrick v. Vandiver

9 S.C.L. 341

• Court: Supreme Court of South Carolina
• Decided: May 15, 1818
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Johnson.

This case is so nearly allied in principle to the case of The Commissioners of the Treasury vs. John C. Allen, the opinion in which has just been delivered, that reasoning on it is deemed almost unnecessary. I can only repeat, that any fact may be proved by parol, when the law does not expressly require it to be in writing; and if the Sheriff chooses to run the risk of trusting the evidences of his transactions of this nature to the memory of man, I know no reason why he should not be at liberty to do so. There can be no question, then, that these facts would have furnished sufficient excuse to the Sheriff for not proceeding on the execution, and I feel as little difficulty in coming to the conclusion, that if he had collected and paid over the principal and interest, under these instructions from the nominal plaintiff to the person to whom the had been passed by him, and who was the real plaintiff that he would have been justifiable; and I am unable to see any good reason why a compromise or settlement made between him and the defendant should not also be considered as a good satisfaction pro tanto. I am therefore of opinion that the decision of the Court below should be reversed, so far as it makes the rule absolute against the Sheriff and that the case should be sent down to the Circuit Court to be determined on its merits.

. GrimJcé, Colcock, JVoif, Cheves, and Gantt, .T, concurred.