
    States Gist v. Joseph Cole, Captain 31st Reg. Militia, So. Ca.
    Where property has been levied on by an execution, issued under the patrol law, it cannot be taken from the officer who has it in possession, by a writ of re-plevin.
    This case came before the Court, by way of an appeal from a decision which was made by Mr. Justice Bay, at Chambers, on a motion to quash the abovq writ; which motion was sustained, and the same was ordered to be set aside.
    
      #.i *The circumstances ■which gave rise to the above proceedings, are briefly the following, viz.: Mr. Gist,the plaintiff in replevin, it appeared had been fined by Oaptain Cole, an officer of the 31st regiment of militia, for divers defalcations, in not performing patrol duty, to the amount of about $70 ; for recovery of which, Oaptain Oole issued his warrant, under his hand and seal, pursuant to the directions of the fifth clause of the patrol act, by virtue of which the sergeant, or other military officer, charged with the service of the execution, levied upon a negro, the property of Mr. Gist, named Stephen, to satisfy the said fines and costs of the conviction. While the negro was in the possession of the officer under the levy, and before any sale could be made of him, to satisfy the said fines, the plaintiff sued out a writ of replevin to the sheriff of Charleston district, who took away the said negro, by virtue.thereof, out of the possession of the military officer aforesaid, .and delivered him back into the possession of Mr. Gist.
    The motion, therefore, at Chambers, was to set aside this writ of replevin, as irregular and against law ; and for an order to the sheriff to restore the negro to the custody and possession of the officer, who had previously levied on him, for the purpose of raising and paying off the said fines.
    Mr. Lance, on the part of Oaptain Cole, when the application was made to quash the writ, obtained a rule on Mr. Gist, to show cause why the same should not be set aside.
    Upon the return of which, Mr. Toomer, on the part of Mr. Gist, came forward, agreeably to the rule, and contended that this writ of replevin was regular and legal, and ought to be supported; that it would lie for every unjust or unlawful taking of goods and chattels ; and that the present seizing and taking of the negro in question was one of that nature. He admitted that several writs of replevin had been lately set aside upon different grounds, yet he still insisted, *¿581 that ft would lay m other cases of an unlawful taking than *for cases of 40S-i distress, for rent in arrear. But what he principally relied upon was, that this case differed widely from all the late cases, in which this writ had been set aside for irregularity, and that it ought to form an exception to the rule by which the cases alluded to had been governed.
    In the first place he observed, that it might well be compared to a warrant of distress from the commissioners of sewers, where goods had been taken by such warrant, and replevied. And upon a motion in the King’s Bench to quash the writ, the Court refused it, but left the defendant in replevin, to put his objections on the record. 6 Bac. 56.
    Secondly — He urged, that this warrant might be considered as an execution issuing out of an inferor Court, in which case, he said, if goods were taken, a writ of replevin would lie for them. Bor, he observed, there was a difference between an execution out of a superior and an inferior Court; that it would be a contempt to issue a replevin for goods taken in execution by the former, whereas it was allowable in the latter. Gilb. Bepl. 154. 6 Bac. 56.
    Mr. Lance, in reply, and in support of his motion, denied that the writ of replevin would lie in any case, in this country, but in cases of distress, and for rent in arrear. That this doctrine was very clearly laid down in 3 Black. Com. 146, which he said was supported and confirmed by all the elementary writers on the subject; that it had never been called in question by any of the English lawyers of the modern day; nor had it ever been in use in Carolina till the other day; since the publication of the Irish case, mentioned in Schoales & Lefroy, Bep. 324. Shannon v. Shannon. The law, he observed, had very wisely provided remedies by trover, detinue, and trespass, for every injury done to personal property. To one or other of these remedies, every man ought to have recourse when he is injured. To apply the writ of replevin to those cases, he contended was a perversion, and an abuse of the writ, for which it was never intended. *And as to inferior jurisdictions, the law had also wisely pro-*459] vided the writ of prohibition, at the threshold of every case, to restrain or confine them within their proper limits and bounds, so as to prevent vexation and oppression.
    After hearing the counsel fully on both sides, the presiding judge being of opinion that the writ of replevin would not lie in any case like the one under consideration, therefore ordered it to be quashed, and the negro levied on to be returned to the officer, who had made the levy on him to raise the fines.
    Erom this decision at Chambers, there was an appeal to this Court, and the case was again argued by the same counsel, before a full Bench, in January, where all the authorities and arguments, which had been offered on the original motion, were again urged by both parties for and against the decision.
    
      
       8 Stat. 513, 516.
    
   The opinion of the Court was delivered by

Bat, J.

To the arguments and authorities adduced on the trial below, I have since given a more attentive consideration; and without going again into the general doctrine of replevin, which I formerly, and on so many occasions since, as well as before, have given to it, I shall confine myself to the exceptions relied upon by the counsel against the motion.

The first exception taken was, that the warrant in that case might be assimilated to that of the commissioners of sewers, when the King’s Bench, it is said, refused to give an order to quash the writ of replevin which had issued for the goods levied on in that case. I have examined the original report of the case referred to in 6 Bac. 56, and find that the warrant of distress, issued by the commissioners of sewers, was for the rates of an assessment on lands in the county of Gloucester, amounting to 41. Is. 6ci., for not repairing a sea wall, which they had caused to be repaired, and for which the adjoining land was chargeable, in which case it might well be considered as a rent charge. *TJpon a motion in .-.¡,, Banco Begis, to quash the replevin which had issued for the goods L' taken by virtue of the warrant, it was doubted whether it should be set aside or not, as it might be considered as a rent charge, in which ease a distress would lay. And, secondly, because it was urged that this assessment had not been made by the Court of Sewers, as authorized by Act of Parliament, but by some of the individual commissioners out of Court, by their own authority. The Court therefore refused to make any order upon the subject, until they had the whole case before them. Pritchard v. Stephens, 6 D. & E. 522. What became of the case finally, the reporters do not inform us. It commenced in doubt, and remains in uncertainty, as far as we are informed ; so that, in fact and in truth, it proves nothing. At all events, however, it appears to me to have no bearing on a case like the one before us. In that case the land was chargeable for the assessment, if it had been regularly made, and distress was the appropriate remedy for nonpayment, as much as for rent in arrear. Whereas, in the present case, the fines were for the neglect of a personal duty, which Mr. Gist was bound to perform ; so that, in my opinion, the cases are in no wise analogous to each other.

The second exception relied upon was, that this proceeding might be considered as one in an inferior Court, in which case it was contended that replevin would lie for goods seized under its authority and jurisdiction. The counsel admitted that an attachment of contempt would lie for issuing a replevin for goods taken in execution, issuing out of a superior Court, but not out of an inferior jurisdiction; and for this purpose, cited 6 Bac. 56, who relies on Gilb. on Replevin, 154. If such a doctrine was once to prevail in South Carolina, and it was held to be the law, I have no hesitation in saying it would soon lay prostrate all the proceedings in all the inferior tribunals of justice in this State. No executions but those of the Court of Chancery and the Court of Common *4611 ^eas *would be secure against this sweeping writ of replevin ; and J that, too, at a time when the parties were upon the point of receiving the fruits of their judgments. All the executions out of the Inferior City Court, those issued by the different corporations for fines and forfeitures, commissioners of the high roads, and all the public bodies in the State, as well as those by magistrates, or by the officers of militia, for fines, &c., would all be paralyzed by the abuse of this writ, upon the principles contended for. For it would only be for the party whose goods are seized under the authority of any of those jurisdictions, to issue his replevin, and get these goods delivered back to him ; and tíren the other party must get them back again the best way he could. At all events, the party thus baffled and disappointed, must go into the Court of Common Pleas, and avow the taking, and show that all the proceedings were regular and agreeable to law ; and even then, the plaintiff in replevin would be entitled to his reply; and every case, after .the lengthy proceedings are made up and issue joined, must go on the docket of Common Pleas, to be tried in regular order, and years would revolve about before these cases could finally be determined on. Thus a scene of confusion and delay would ensue, of which few men can well see the end. Fortunately, however, for the citizens of South Carolina, this is, in my opinion, not the law. I acknowledge that Gilbert has said so, and that Bacon has quoted him to that effect; but neither reason nor justice will bear him out in this position. For I lay it down to be sound law, as well as the wisest policy, to give to every jurisdiction created for the advancement of justice, and the good order and police of the State, all the specified powers and authorities with which they were invested ; and there is no more reason or justice for calling in question, or interrupting their proceedings, while they act within the rules prescribed to them, than there is for calling in question the proceedings of the superior tribunals of justice. If, however, any of them should, at any time, transcend or ^exceed their limits and powers, a prohibition from one of the superior Courts is the appropriate remedy, appointed by law for correcting or preventing any abuse.

It is argued in Pangburn v. Partridge, 7 John. Rep. 142, that this position of Gilbert, “that replevin lies for goods taken in execution from an inferior Court, is clearly erroneous, and that there are numerous cases to the contrary. In this opinion I perfectly coincide ; as the whole current of authorities in the books upon the subject are against it. It will not be denied, but that the supreme authority of Parliament in Great Britain, and of the legislative body in South Carolina, have an unquestionable authority to control the common law ; and even in Acts of Parliament themselves, it is a maxim that leges posteriores priores ábrogant. Admitting, then, for argument sake, that such a principle as the one laid down in Gilbert, even existed as a part of the common law, there can be no doubt but a positive Act of the Legislature would turn the scale against it; and that the statute law, from thenceforward, would become the law of the land.

There are no positive and express decisions or authorities in this country, in favor of the doctrine I am now advocating, because this principle of a replevin laying in these cases, is a thing of yesterday ; one of spurious growth, utterly unknown and unpractised in our country from its earliest institutions. But in England, the eases are numerous, where it has been settled that this writ of replevin will not lie in any case for goods taken in execution, under the authority of an Act of Parliament, or any inferior jurisdiction. In Bradshaw’s case, Temp. 12 W. 3, mentioned in 6 Bac. 55, and also by Cunningham, in his Law Dictionary, it is laid down that wherever an Act of Parliament orders or directs a distress and sale of goods, it is in nature of an execution, and replevin does not lie for them. So it is laid down in 6 Bac. 56, that replevin does not lie for goods seized by a warrant from a justice of the peace, upon a conviction for the destruction of game, under the authority of an Act of Parliament; and that *it would be considered as a contempt to issue it. In the case of Rex v. Oliver, Bunb. 14, on a warrant L of distress for a land tax, a replevin was considered a contempt. And so, in like manner, in the case of The King v. Monkhouse, it was determined that replevin would not lie for goods distrained on a conviction for deer-stealing, under an Act of Parliament, 2 Str. 1184; and that an attachment should go against the under sheriff for serving it.

This brings me, at last, to the patrol law, which is a public Act of South Carolina, under which the warrant for seizing the negro in question was issued, and who has been replevied. This Act may and ought to be considered as one of the safeguards of the people of South Carolina, for the protection of their dwellings and habitations, and for the prevention of the unlawful - assembling of a particular class of our population, and as a security against insurrection; a danger of such a nature, that it never can or ought to be lost sight of in the Southern States. It may justly be considered as a branch of our militia system ; our grand national defence against foreign enemies, and for our internal tranquillity at home. It is easy, therefore, to see that summary and decisive powers ought to be vested in the hands of those who are charged with the execution of this important duty. The Act in question, therefore, has given the necessary powers to the captains of the militia throughout the State ; and has fixed and regulated the fines for all neglects and omissions of duty by those who are by law liable to perform it, and has authorized them to issue their warrants under their hands and seals, to seize and levy upon the goods and chattels of defaulters, to pay a.nd satisfy the fines imposed for this neglect of duty. Here, then, is a plain and positive Act of our Legislature, giving these full and express powers to our captains of the militia; and under the authority of one of them, and by virtue of his warrant, the negro Stephen, belonging to Mr. Gist, was levied on, and in the lawful possession of the officer charged with the execution of *it, when this writ of replevin was issued; which brings this case immediately under the principles of the cases, in which it has been L determined in England, that a writ of replevin will not lie in opposition to an Act of Parliament. I am, therefore, clearly of opinion, that the writ of replevin in this case was not warranted by law, and that it was an illegal interference with the proceedings and the authority given to one of our militia captains by the Act of the Legislature, and that the same should be quashed, or set aside, as null and void ; and further, that the negro Stephen should be delivered back to the military officer, from whom he was taken by the sheriff of Charleston District, in order to raise the fines mentioned in Captain Cole’s warrant.

Toomer, for the motion. Lance, contra.

Colcock, Nott, Richardson, Johnson and Huger, JJ., concurred.

See 8 Rich. 109; Harp. 336; 1 McC. R. 401; 2 MeC. 330.  