
    George Clarke and others ads. Daniel Blake.
    the act of 1740, authorizes any person to seize and carry to the nearest magisirate, any horses, kept, raised or brpd by slaves, who is authorized to sell them. But the horses must have been appropriated for the peculiar use and benefit of slaves.
    though the horses be condemned and'sold by the magistrate as the property of a slave; yet the true owner, if he be a freeman may have his action for damages against those who seize his horses. The decision of the magistrate is no bar to the action, and the fact that the plaintiffs agent had notice of the seizure cannot alter the case; as no person can take the necessary oatli before the magistrate, but the owner of the horses.
    Tried at Colleton, November term, 1824, before Mr. Justice Richardson, who made the following report:
    This was an action of trespass vi et armis for entering plaintiffs plantation and carrying off four horses, alleged to be the property of the plaintiff. The defence was justification, as patrol in seizing the horses alleged to belong to plaintiffs negroes and not to himself; that the horses were only carried as far as the next magistrate and delivered to him; that the magistrate gave notice to plaintiffs agent to come before him and take the oath prescribed by A. A. 1740, or that the horses would be sold according to law. The agent refused to do so, and the horses were sold at public auction, by order of the magistrate, and defendants received some of the purchase money. The evidence was. as follows:
    James Sharpe, plaintiffs overseer, said several negroes Were allowed to keep horses on plaintiffs plantation. Witness had these horses driven up and selected a few for plaintiffs-use and the rest were sold'. A horse and mare were retained and broke for plaintiff’s use. In July 1822, G; L. Clark, Peter Basquin, Gilbert Martin and J. J. Sneed came and drove the colts off, and a mare and the colt of plaintiff. Witness told them the two colts were plaintiff’s. Defendants said they' were the guardians of the law and knew what they were about. The two colts and a mare and colt were taken be» fore Col. Hunter J. P. and sold. The mare was worth $80; the horse $100; mare and' colt $40 — $220. Witness offered to swear to the facts before Col. Hunter, who said, that as. two had belonged to a negro, he did not know how to proceed and wished to consult Col. Martin an attorney;- witness when at Hunters, told them the mare and colt never belonged to the negroes, and had told the same to those who took the two colts, i. e. Basquin, Martin Sic. he thinks Sneed too. Plaintiff’s Attorney, H. Middleton, had ordered the sale of the negroe’s liorses in July 1822. Witness sent the affidavit to Col. Hunter before the sale.
    V. Ruger said, Clark, Sneed, Basquin and Martin and witness went together and took the four horses; Clark and witness led off the mare and colt, worth; $40; the othes mare and horse, worth $45 or $50 a piece. They were all sold.
    William Hasell said, he saw defendants at the gate and told them, the mare and colt were not negroe’s property. Patrol warrant to dark was here adduced.
    Brown sworn; the horse.s sold for ‡.; the mare $77.
    
    Col. Hunter swore Clark made the affiidavit; Sharp appeared andwittness offered him the oath and he refused to take it, and appeared to doubt Blake’s right in the horses». Witness received the affidavit before the sale; witness condemned the horses and ordered the sale, though he received the oath of Sharp before the sale and the answer of Martin* Witness thought the affidavit insufficient as it should bav$ been made before witness. Took this affidavit alone. Land was to give notice to all concerned.
    B. Williams swore Sharp said he did not know1 whether the mare and colt belonged to the negroes, but he would enquire, &c. At the time of sale (.'lark said, he wouli| have nothing to do with the mare and colt.
    The presiding judge charged the jury that the defend?, ants were protected by the judgment of the magistrate, being a ■competent jurisdiction, for whatever occurred after judgment; that whether the patrol were justified in taking the ho'rses to the magistrate depended upon the circumstances; but the judge thought it a trespass and that plaintiff was entitled to damages for taking and leading away the horses to the magistrate^ but in strict law, for nothing done by order of the justice, there being no fraud or collusion. The jury found a verdict for plaintiff for two hundred and twenty dollars. And a motion for a new trial was made on the grounds:
    1st. Because the taking was lawful, as the property was found in possession of negroes:
    2nd. That the subsequent proceedings were lawful, anc| it was the plaintiff’s own fault if he sustained injury, because that injury might have been averted, if he had complied with the requisitions of A. A. 1740:
    3rd. Because the verdict was contrary to the charge -of the court, and to the law, in this, that the remedy, if anys was against the magistrate, and not against the defendants;
    4th. Because the damages were excessive and unwarranted by the testimony, and under all circumstances particularly vindictive damages should not have been given.
   Johnson J.

The grounds taken in support of this, motion are resolvable into the questions:

1st, Whether the seizure of the horses by the defend-», , ants was justifiable; and,

Sndly, If not, the extent of their liability.

These will be noticed in their order: 1st, The act of 1740, (F, L, 171,) authorises any person to. seize .and take away from any slave any horses, &c. kept, raised or bred for the peculiar use of any slave, and to deliver them to the nearest magistrate. The power delegated by this act to the captor is wholly ministerial; and it is clear that to justify its execution, the state of things contemplated must substantially exist; as when a sheriff or other officer takes the goods of a stranger in execution, then he acts upon his own responsibility and is liable for all the consequences. Now the ground on which the justification in this case is attempted to be supported is that the horses were in the possession of slavps. In the first place, from the evidence reported, it does not appear that this was true in point of fact, and it is equally fallacious in point of law. It is not the possession of the slave which authorizes the seizure, but the circumstance that they were kept, raised or bred for the peculiar use of the slave, which justifies it. The fact that horses kept for the use of plantations are generally attended to and used by slaves is notorious, and it can never be believed that the Legislature intended to expose to seizure all that might be found in the accidental possession of slaves. The horses in question were the property of the plaintiff at the time of the seizure, they were not then appropriated for the peculiar use and benefit of slaves. The state of things contemplated by the act, did not exist and the seizure was a trespass on the part of the defendants.

2nd. The general rule as applicable to the second question is that he who commits an unlawful act is liable for all the consequences. The loss of the horses being the consequence of the seizure, and that being unlawful, it follows, necessarily, that the defendants were liable for their full value and that the verdict ought, therefore, to stand. But it is said in support of the motion, that admitting the original taking to be tresspass, the delivery to the magistrate and his adjudication and condemnation so far purged the wrong as to exempt the defendants • from all responsibility for the ultimate loss of the property. There is no disposition to control the general proposition that when goods are taken out of the possession of one whose possession is tortious by a course of judicial proceedings to which the rightful owner is- a party* that the wrong doer would be pro tanto exempted from responsibility; but in this case ihe plaintiff was not a party and could not be affected ;by any order which the magistrate could have made. The circumstance that the plaintiff’s agent had notice of the proceedings cannot alter the case. To entitle the owner to a restoration of property thus seized, :the act prescribes the form, and requires him to take an oath, which, from the nature of it, a mere agent is incompetent to do, besides involving-the absurdity that a man can swear by proxy. Motion dismissed.

De. Saussure, for the motion.

.Petigru, Attorney General, contra.  