
    Bull against Horlbeck.
    Any negra slave founds ciden tolly or the premises-, is distrairiable for rent due by the tenant* whether he is the property of the tenan* or nfli-
    THIS was an action of replevin. The case was, that one Cobb had rented a tenement from the present defendant and avowant ; and there being due for rent in arrear 45/. he seized the plaintiff's negro, who happened to be found accidentally on the premises. So that the simple question was, whether the negro of a third person, accidentally found on the premises of a landlord, could be distrained, for rent due by the tenant, or not ?
    Lee, for the avowant,
    contended, that by the common law, any and all the goods and chattels found on the premises, were distrainable for rent in arrear. That it was not the business of the landlord to inquire into the right of property of his tenant to any goods actually in his possession — - it was enough that they were on the premises ; otherwise it would be easy for a tenant to collude with another, exchange property for a few days, until he could move from a house, and thereby defeat the right of the landlord to this summary mode of redress by distress» That it had beers the constant practice in this country heretofore, to consider negroes found on leased premises as liable to a distress.
    
      Pringle and Desaussure, contra,
    admitted the doctrine contended for, as to every species of personal property, excepting negroes. As to them, the common law could not apply, because slavery was unknown in England,, from whence we borrowed the principles of the common law j consequently, such a species of property could never have been in the contemplation of the common law. The doctrine of slavery was a part of the civil law, and incorporated into the policy of this country from high considerations o? necessity and utility. Every rule, therefore, respecting slaves, must be taken from the civil law, or governed by the local circumstances and situation oí South-Carolina. The law of distress was unknown to the civil law. Upon the local situation of this country alone, then, the case should be governed. They further urged, that it would be extremely inconvenient, indeed, to the citizens of this country, if the doctrine contended for were to prevail. That negroes had a volition, or will, of their own, and could not be restrained from going into a neighbouring plantation, or inclosure, and mixing with other negroes. To’ subject them, therefore, under such circumstances, to the rigid doctrine of distress, if found on premises occupied by a tenant, would not only be unjust, but contrary to the sound policy and general convenience of the state. Even in England, for the public advantage, and general convenience, personal property, in a variety of situations, was exempted from distress ; as, corn in a mill — -wool at a neighbouring barn. 2 Burr. 1500. Cloth at a taylor’s shop — horses at an inn, &c. So, in the same manner, for the public convenience, negroes ought to be exempted. Our courts had already, in some instances, modified the doctrine by saying that a negro, bound out as an apprentice, should not be liable ; ([Phelon v. MiBride)) ante ;) neither should goods at a vendue store. (Himely v. Wyatt £f? Richardson, ante.)
   The Court, in charging the jury, differed in opinion.

The Chief Justice, and Grimke, J,

were in favour of the avowant, and mentioned to the jury, that negroes circumstanced like the present plaintiff’s, had always been considered as liable to distress. That the doctrine had often been recognised, and they did not consider themselves at liberty to depart from it at this day, notwithstanding there might be some apparent inconvenience and hardship in the case.

Bay, J.

was of a contrary opinion. He could not conceive that the common law ever contemplated this kind of property. If it had, he doubted not but it would have formed one of the exemptions from distress. An owner had a perfect command over every other kind of goods and chattels, so that they could not easily go into the inclosure o f another against his consent. , But negroes had a will of their own, and the strictest watching could not, at times, prevent them from visiting their acquaintances in a neigh-bouring plantation or yard. Tradesmen’s negro apprentices were striking instances of the necessity of such exemptions ; and he was of opinion, that the same rule should extend to hired negro tradesmen of every description, and all other negroes belonging to third persons. As to the practice hitherto established, it was so manifestly against common reason and justice, that no acquiescence in it could sanction the principle, The sooner, he thought, it was rectified, the better.

The jury found for the plaintiff. The verdict has been acquiesced in, and the case often relied on since, though no more solemn decision has ever yet taken place on the subject. 
      
      
        Vide the case of Brodon v. Pierce, cited in l Vern. ISi. where cattle coming by escape out of the neighbouring grounds, held not to ho distrainable.
     
      
       See act of assembly passed in December, 1799, by which negroes or slaves of third persons are exempted from distress for rent, &c. so that such exemption forms a part of the law of South-Carolina at this day.
     