
    Alexander Cholett against John Hart, Sheriff of Charleston District.
    
      Charleston District,
    
    
      1798.
    
    Four years5 peaceaLÍe possession of ne-groes or oilier chattels* under a bona fde sale for valuable consideration, gives the possessor a good title against a sheriff who may attempt to levy on them, as the property of a former proprietor, &c. under the pretence that they were hound by a former execution in liis office.
    Trespass will lay against a sheriff who seizes negroes as the property of a third person, after t hey have been 4 years in the possession of a bona fide purchaser.
    TRESPASS, for taking and carrying away sundry ne« groes, out of plaintiff’s possession, for the debt of a third person.
    Defendant justified under an execution (a fit. fa.) deli-vei'ed to him, in the suit of the Executors of Benjamin Smith v. Richard Ellis.
    
    On the trial of this cause, it appeared from the report of the presiding judge, that a judgment had been obtained by the executors of Benjamin Smith, against Richard Ellis, and an execution lodged in the sheriff’s office, on, the 27th of August, 1785. That this judgment remained over unsatisfied till the year 1797, more than eleven years, when it was renewed by a sci. fa. and a new execution lodged in the present sheriff’s office, against the defendant in that action. It was under this last execution, that the defendant, as sheriff of Charleston district, seized the negroes in question, as the property of Ellis ; which it was contended had been bound by the first execution lodged in 1785.
    The plaintiff, Mr. Cholett, on his part, produced a bill of sale of the negroes in question, and sundry others from Richard Ellis, to him, dated the Sth of October, 1786, for a valuable consideration mentioned in the said bill of sale ; and which was bona fide paid, at the time of the purchase % alleging at the sam,e time, that he knew nothing of the judgment or execution against Ellis, when he made a bargain with him for the negroes. Upon this bill of sale, and his possession of the said negroes, till they were taken by the sheriff, he rested his claim and title to them.
    The Attorney-General, and Mr. Marshall, on behalf of the sheriff,
    contended, that the lodging of the first execution in the sheriff’s office, bound the property of Ellis, and gave a lien on the negroes in dispute, by the statute of frauds, from the day it was lodged, which no sale after-wards by the defendant could defeat. That the statute of limitations could not be pleaded against a record, nor have any operation against a judgment and an execution. 1 Esp* 200. That this lien created by the statute, was in fact a statutory mortgage ; which no subsequent judgment, or voluntary conveyance from that time, could defeat or impugn. By the common law, the fieri facias bound the defendant's goods from the teste of the writ, so that any sale after-wards was void; because the goods from the time of the teste, were attendant to answer the execution : but men abused the notion of this retrospect of the goods being bound by the teste of the writ, to make sales uncertain; for they took out writs one after the other, without delivering them to the sheriff, by which they bound the goods of their debtors in such a manner, as made all commerce uncertain s to prevent which, the statute of frauds bound the goods only, from the delivery of the writs to the sheriff. Gilb. Law ef Executions, 14. This statute made no alteration as to the binding efficacy of the fieri facias, only fixed with precise certainty the time when it was to commence, instead of leaving it to a retrospective reference, to the teste of the execution. So highly does the law estimate this binding quality of the fi. fa. that if a voluntary sale for valuable consideration is made on the same day, that the writ was formerly tested, or (since the statute) lodged with the sheriff, the execution shall take place, or have a preference— €ro. Eliz. 440. Gilb. Law of Executions, IS.
    
    They next contended, that if the first writ of execution bound Ellis’s property, from the time of the delivery to the sheriff, it still remained bound ; or to make use of the common law language, it continued to be attendant on that exe* aution, until satisfaction was made ; and the second execution, after the judgment was revived by a sci. fa. was only the mandate to the sheriff then in office, to complete the satisfaction which had been commenced by the former execution in the hands of a former sheriff. Under .these circumstances, they said, the present sheriff, Hart, was obliged to pursue the property so bound, wherever he could find it; and consequently, could not be said to be guilty of any trespass.
    Mr. Ford, for the plaintiff,
    did not mean to contend that the judgment or execution of the executor of Smith against Ellis, was barred by the statute of limitations ; but insisted, that a bona fde purchaser, for a valuable consideration, of negroes never levied on, and four years’ peaceable enjoyment afterwards, protected the innocent purchaser, under the act of limitations, against all the world. That the clause of the limitation act expressly declared, “ that all “ actions of trespass, detinue, trover and replevin, actions “ on the case, and account, covenant, and quare clausum “ fregit, should be commenced within four years, next after “ the cause of action accrued, and not after.” Now admitting for argument sake, that the sheriff could have brought his action, without any levy specifically made on these negroes, it should have been brought within four years after the plaintiff, Mr. Cholett, took them away out of the possession of Mr. Ellis, which was on the 9th of October, 1786, the date of the bill of sale. It was evident therefore, according to this construction, that any action for the recovery of them, or damages in taking them away, should have been commenced on or before the 9th of October, 1790; instead of which all the parties slept upon their rights till the year 1797, full'seven years after their right of action was gone. But he contended, that the former sheriff, on the lodging of the first execution, had no right to maintain any action against a third person for the specific ne-groes in question, until there was an actual levy by virtue of such execution. He admitted, that by the common law, the execution bound the defendant’s property; but this was to be taken sub modo; that is, it bound every part of it, in such a manner, that the sheriff could seize and take any 
      
      part of it that he could find, or reduce into his possession : then it was, and not before, that the sheriff on seizure acquired such a property in the goods, that he could maintain trespass or trover for them ; for by the seizure, he- had the goods to sell, that he might have the money in court; and therefore when he seized the goods, he had the property in them for that purpose. Now it was very evident, he said, the sheriff could maintain no action for goods before they were seized and reduced into possession ; consequently, as the former sheriff had never made this levy or seizure, no right of action ever accrued to him during the time he was in office ; though he might have made the levy, if he had thought proper; besides it was urged, that some reasonable bounds ought to be set to this binding quality of an execution ; there ought to be some limits and boundaries placed around it ; for instance a man owed 100/. sterling, and he possessed one hundred negroes, any one of which was sufficient to pay the debt; an execution is lodged in the sheriff’s office against the defendant, but no levy made on any one particular negro. Is the defendant then to be debarred of the privilege of selling afterwards, if he pleases, ninety-nine of his negroes ? and has this judgment creditor a right to pursue any one of these ninety-nine negroes, at any future day, in the hands of an innocent purchaser, in order to pay off this dormant debt, if defendant should in process of time turn out to be insolvent ? This, he said, was unreasonable and unjust; he therefore put this case, to shew the wisdom and sound policy of the limitation act, which had fixed these limits and boundaries, and which had declared that no action should be maintained for any such property, unless commenced within four years after the right accrued.
    
      j^cutians °? 15-2 Saund 47. Lex>. 282.
    The case then went under the charge of the judge to the jury, who told them that the act of limitation protected the property in the possession of the plaintiff, against the seizure of the sheriff under the second execution, after four years’ peaceable possession ; and consequently, that the sheriff ought to be considered as a trespasser. The jury then found for the plaintiff a sum sufficiently large to oblige the-sheriff to give up the negroes ; this being an amicable suit merely to try the right of the sheriff to make the seizure.
    A motion was afterwards made for a new trial, on the ground of misdirection in point of law, on the part of the judge, and as a verdict against law.
   The motion was very fully argued, by counsel on both sides, when nearly the same grounds were taken that had been urged on the trial; after which, the judgment of the. court was delivered by Mr. Justice W aties, as follows %

That the great object of the limitation act which was passed so long ago as the year 1712, and which had remained in force to the present day, with scarcely a single alteration, was to quiet the inhabitants of this state, in the peaceable and quiet enjoyment of their estates, both real and personal. This was deemed by our ancestors, a matter of primary consideration, tending to give security and permanency to property of all kinds j and to prevent as much as possible, every species of litigation so injurious to society, and especially in a young country, just then emerging from the difficulties attending the first settlement of it. The second and third clauses of the act, were intended to secure actual settlers in the possession of their lands, and hundreds of suits have been determined in this country, in favour of possessory rights alone, against the clearest titles by grants and deeds, &c.

The fifth and sixth clauses of the act, were intended to give the like security to personal property of every kind, in the actual possession of our citizens, in the same manner as was afforded to the possessors of landed property. Five years' possession completed the title to lands, and four years’ possession die tide to all kinds of chattels, as no suit can be maintained ioi either, without being commenced within the above periods. '

Whatever advantages the common law meant to give to judgments, executions, and the levies of sheriff-, they are all circumscribed by the limits prescribed by this act, as to bona fde purchasers and possessors. But no common law right is affected by it, if pursued within the above periods, which the policy of the law considers as a reasonable time to pursue those rights ; leges vigilantibus non dormientibus subveniunt; and if men will sleep upon their rights, it is their own faults ; they have themselves to blame, and must take the consequences.

There can be no doubt, but the sheriff might have levied on the negroes when the first execution was lodged; and if he had done so, he might have pursued his action of trover or trespass, against any person into whose hands they might come, at any time within four years after the day of the levy ; but as he did not do either within that time, his right under that execution was gone. Upon the renewal of the judgment, eleven years after, and the lodging of the second execution in the sheriff’s office, the present sheriff might still have levied on the negroes, -v.-y h.od remained in the possession of Ellis, the defendant in the action, • - would have run against the judgment or execution, as against him ; the property would still have been bound by the renewal of the execution. But the property of the ne-groes in question, was not in him when the second execution was renewed ; that had been transferred to the plain tiff Cholett, and he had enjoyed the peaceable possession of them more than four years after the time of their delivery : his title, therefore, was complete at the end of that period, since which time he has had the peaceable enjoys jnent of them six years more, before the sheriff took possession of them»

It is clear, therefore, that the sheriff was not justifiable in seizing them, and taking them off, under this second ex> ecution. irle is undoubtedly a trespasser.

Rule for a new trial discharged.

Present, Burke, Grimke, Waties and Bay,  