STONE, Guardian of Three Minor Children, against EBBERLY. TROVER for a negro boy. This case came before the court on a special verdict found in the year 1790, as follows: May Term Trover will lie for a negro bought at a sheriff's sale, against an in nocent ven a valuable consideration for "That Mathew Guerin, (whose daughter, Thomas Stone, dee, who pays "the present plaintiff, married,) by deed of gift, gave sun"dry negroes to his three grand-children, Thomas Stone, him. "the younger, and Elizabeth and Mary Stone, all minors "and under age, share and share alike, and among others, "the boy in question. That Thomas Stone, the eldest of "the grand-children, came to Charleston, and contracted "several debts with tradesmen, being then about twenty years of age; and having gone off to Georgia, the boy in "question, who had attended him as a waiting man, was "attached as his property, and afterwards sold by the "sheriff under the attachment act, in order to satisfy his, "young Stone's, debts. At this sale, the present defendant "became the purchaser of this negro boy. And whether "this sale, being a public sale, and made under the sanction “of law, to a fair bona fide purchaser, for a valuable con"sideration, would bar the plaintiff of his right of action in "the present suit? was the point submitted to the court. "If it did, then the jury found for the defendant; if not, "then for the plaintiff, with costs." The case underwent several ingenious arguments. For the plaintiff, it was compared to sale made in market overt, where the thing sold was secured to the purchaser at all events. That it was a sale made by operation of law, under a public act; and to defeat the purchaser of his purchase, would have a tendency to clog sheriffs' sales exceedingly, and would lessen the value of property brought to sale upon those occasions. That the defendant was a fair purchaser, had paid his money, got the sheriff's bill of sale, and ought to be secured in his purchase; otherwise, 1793. Stone V. Ebberly. he would lose his money, which he had fairly paid away, under the sanction of the proceedings of our courts of justice, which otherwise might be calculated to entrap and deceive unwary purchasers, &c. On the other hand, it was contended, that young Stone was a minor, incapable of contracting, except for necessaries, which was not even alleged. But admitting he was of full age at the time, no property in the negro was ever vested in him. The property was in Stone, the father, as guardian, till his children came of age, and a division made among them. And if no property was in him, then it was not liable to his debts. That the negro was attached by mistake; and the mistake of the sheriff, or plaintiff, could not devest the original owner. That it was clear law, that if the sheriff seizes and sells the goods of A. for the debts of B. trespass will lie against him. That the inconveniences would be greater to the community, in giving a legal sanction to such mistaken sales, in selling the goods of innocent third persons, than it would be in subjecting the property in the hands of an innocent vendee, to the action of trover. One of the great objects of the laws of civil society, was to protect persons in their property, wherever it should be found. To give the case, therefore, the construction contended for by the defendant, would be converting the law into an engine of oppression, in depriving one of the very property it was bound to preserve and protect. Besides, the defendant was not remediless, for he might recover his money from the plaintiff in attachment, who had received his money by mistake: whereas, if the sale was confirmed, the younger children of Stone would be without remedy. The case against the sheriffs of London, 1 Burr. 31. was principally relied on for the plaintiff, The Court, (present, the CHIEF JUSTICE, BURKE, J. and WATIES, J.) after a full consideration of the case, were clearly of opinion, that the action of trover would lie against the vendee, as the property still remained in Thomas Stone, the father, as guardian of his children; and no mis take or tortious act of the sheriff, could devest innocent third persons of their property, lawfully acquired. 1793. Stone The postea delivered to the plaintiff. Pringle and Ford, for plaintiff. Pinckney and Taylor, for defendant. The Administrators of HUGER, late Sheriff, against THIS was an action of assumpsit for sheriff's fees; and the points submitted to the court were the following, viz. 1. Whether in cases where executions are lodged, and levies made, the sheriff becomes, under the instalment law, entitled to the whole fees, or only part, and what part? 2. Where, on executions lodged, the words "levied on residue, if any, after paying off prior executions," are indorsed, this shall be considered as a proper levy on the defendant's goods, &c. and whether any, and what fees shall be allowed thereon? 3. Whether, on executions not subject to the instalment law, but where no actual sale is made, he is entitled to any, and what fees? 4. Whether any other proof of levy is necessary, than the return of the sheriff on the execution? These points were all fully argued by counsel, after which, The Court took time to consider, and all the judges were of opinion upon the first point. V. Ebberly. May Term 1793. Adm❜rs of V. Osborne. The return of a sheriff, that 1. That in all cases where the sheriff had made actual levies of the defendant's goods, &c. for the instalments due, but had not proceeded to sale, he was entitled to his fees and half commissions on all sums actually recoverable under the instalment law. And in cases where security had been demanded and refused, and where the sheriff had in consequence thereof, proceeded to sell part for cash, and part for bonds, pursuant to the terms of the act, there he was entitled to his fees, and to whole commissions on the debt. 2. That an indorsement on the back of an execution, in he had levied the manner mentioned, of a levy on residue, after paying off due of defend prior executions, is no levy at all. It may be ten times as ant's goods, much as the debt due, or it may be nothing; or it may be after paying on the resi tv. Sheriff could trover or tres pass for taking away the goods on such à return. off prior exe- casting a net over all a defendant has in the world. It is cutions is void for uncertain- too vague and uncertain to be warranted in law. Execu tions are separate, distinct things, and do not refer to each not maintain other. Besides, the sheriff could not maintain any action on such a levy, if the goods were taken away, or sold to a third person. A list or schedule of the property actually levied on by name and description, ought to be annexed to, or entered on, the back of the execution, and signed by the sheriff, or his lawful deputy, in order that the property may be identified, if necessary. By virtue of the levy or seizure, the goods are vested in the sheriff; so that he can maintain trover or trespass for them. But how is it possible that he can support an action, unless the goods, &c. are particularly enumerated. And although they remain in the defendant's hands, after levy, yet they are supposed to be in the sherifl's custody; for the defendant is as the agent for the sheriff, after a levy made. How could the plaintiff issue out any new execution, in case of a rescue? Or again seize them, or send out a venditioni exponas, &c. unless they were specifically enumerated, so as to enable him to pursue, or retake them wherever found. Again, it is by no means clear that a sheriff would not make himself liable, by such an indefinite return of the property, should it be afterwards taken away, and it should appear that there was enough to pay the debt. For it is laid down in 2 Saund. 3. That in cases where levies were made, which did not come under the instalment law, but where the whole was payable, the sheriff is entitled to half commissions on the whole debt. 1793. Adm'rs of V. Osborne. property l vied on should 4. That the return of the sheriff, with a list of the pro- A list of the perty so ascertained as above, on the back of an execution, was prima facie evidence of the property seized and levied on, so as to bind it for the payment of the debt. be on; or a schedule annex ed to the execution. |