
    Osborne against Huger.
    The act of 1771, obliging sheriffsto turn over their books, m rits, executions, and papers, &c. See. to iheir successors in office, ought to have a prospective, not a retrospective operation ; con-st, fluently, it does not extend, to any oí* the old sheriff, in office, win a that act passed.
    THIS was a special action on tbe case. The first count In the declaration stated^ that in and by a late act of the legislature, ratified on the 19th of February, 173Í, being u An act to amend the several acts for establishing and re-64 gulating’ the circuit courts throughout this state j” it was, among other things, enacted, “ That 'the sheriff of each of 44 the said districts, shall be obliged, at the expiration of his 44 office, to turn over to the 'succeeding sheriff, ail execu-44 tions whereon he hath not made actual sale of the pro-44 perty levied by virtue of such executions, to the amount 44 of the demand of the plaintiffs in such suits.” That the defendant, at and after the time of passing the said act, until the day of March following, was sheriff of the district of Charleston, at which day his office expired ; that immediately afterwards, the plaintiff became and was sheriff of the said district, by virtue of an election thereto by the legislature, on the 19th of February, 1791 ; that at the same time, the defendant had in his hands, a certain execution or fieri facias (in the said declaration named) re~ turnable to January return, 1791, on which, though the defendant had made a levy, he had made no actual sale of the property ; and that by force of the said act of assembly, it accrued to the plaintiff, as successor in office, to have, possess, and execute the said execution : nevertheless, the defendant well knowing the premises, but intending to hinder and embarrass the plaintiff from, and iu the execution of his office, and to deprive him- of the fees and emoluments appertaining thereto, did not, although often requested, turn over the said execution, but refused, and still did refuse so to do.
    Second count charged the defendant, in the same way, with having one other execution in his hands, whereon he had made a levy, but no actual sale ; and by pretext whereof, defendant, after (he expiration of his office, proceeded to 
      sell the property, and, upon that sale, received for fees and commissions 2Si. which said sum of 2sL by reason of the aforesaid act of the legislature, the defendant became liable to account for and pay to the plaintiff; and being so liable, that he assumed upon himself, and promised to pay, when he should be thereunto afterwards requested, &c. (in the usual form.)
    Third count differed in no respect from the second, only' that the defendant (instead of selling the property levied) had, after his'office expired, received from the defendant in the cause, (therein named,) the debt and costs due upon the execution, and with it ¿51. for sheriff’s fees and commissions; for which, being in like manner liable, he assumed, &.c. ,
    To the declaration the defendant demurred generally» The state of the case under it, was, shortly, that the defendant, Huger, was the old sheriff, in office before the act passed, and that he was elected for two years. That those two years would not elapse till March, 1791. That the •plaintiff, Osborne, was new sheriff, and the questions were,
    1st. Whether the clause of the act aforesaid was to operate so as to oblige the old sheriff to turn over to his sue-, cessor, all executions on which he had not made sale of the property, even though he had made levy thereupon ?
    2dly. Whether, if the executions were so to be turned over, the fees of office were to pass over with them ?
    Read, Holmes and Ford,
    
    contended, that the sixth clause of the act was express and unqualified, and without any latitude of construction, easily embraced this case. It was as follows : “ That the sheriff of each of the said districts u shall be obliged, at the expiration of his office, to turn “ over to the succeeding sheriff, all such writs and process “ as shall remain in his hands unexecuted, in the manner “ prescribed by the act for establishing courts, building gaols. “ and 'appointing sheriff's and other officers, for the more “ convenient administration of justice in this (then) province, a passed 29th July, 1769 ; and also all executions whereon *4 he had not made actual sale of the property, levied by vir- “ tue of such executions, to the amount of the demands of “ the plaintiffs in such suits.” To- bring the late sheriffs within this clause, it was incumbent on them to shew that this act took effect and operation before the expiration of the offices. In order to this, they contended, that where no time is limited in the body of an act for its commencement, there, by law, it takes its operation from the first day of the session of the legislature. To prove this, they cited 1 Roll. Abr. 465. 4 Inst. 25. Hob. 309. 4 Bac. Abr. 636. ph 1, 2, 3. 4 Com. Dig. 375. k. 1.
    But it may be said that there is a time mentioned in the second clause of this act, viz. “ From and after the next “ sitting of the courts through the state.” They admitted, that if this were true, it would destroy the construction, because the offices of all the sheriffs expired before the court sat. But they contended that these words were not intended, nor could they be construed into a general limitation of the whole act, but had an evident relation only to the court days and return days through the state, which were all altered by that clause, and from and after the termination of the next courts, was the period fixed • for such new arrangement of the court days and return days to take effect. The .operation of these regulations, therefore, ended with the third clause, which also declares the boundaries of the districts, and erects two hew districts. This construction they further inferred from the nature of the 4th clause, which declares who shall be the judges of the court's. That it created a chiefjustice saáont puisne judge, both of whom were elected by the same legislature, and who, instead of postponing the exercise of their offices till after the session of the next courts, actually held some of those courts themselves, tried and convicted capital felons, who have since been executed, and sat in trial upon several important civil causes. Yet, if that clause could have so extensive an operation, those trials and those convictions were, and necessarily must have been, coram nonjudice.. Thus, they con» tended, that the very existence and legality of those courts themselves depended upon the construction they put, and was a tacit declaration, by the judges, that the limitation mentioned.in the second clause had no more than a limited effect in some particular parts of the act. It was further contended, however, that if the act took effect only from the time of its ratification, (which happened, it seems, to have been on the same day on which the election of sheriffs and other officers took place,) still, the old sheriffs would be within it, because they were elected under the former constitution of this state, which declared, that the “ sheriffs “ should be elected and commissioned for two yearsand that the two years did not expire until some time in March next after the passing of the act.
    The counsel next endeavoured to obviate an objection which arose out of the twelfth clause of the same act. It was as follows : “ That this act shall not extend to any “ actions which shall be commenced before the 18th day of “ November next; but all such actions and suits may be pro- “ ceeded in and determined in the same manner as if this “ act had never been passed.” This clause, they said, 'might be obviated in three ways, each of which was equally conclusive. 1. That from considering the place, and the relation it stands in to all the rest of the act, the words, though very general, must evidently be taken as a proviso. By referring to the immediately preceding clause, it is found, that provision is made for building gaols and courthouses, in the new districts which had been erected and defined in the former parts of the act. These new districts had been carved out of some of the old ones. It naturally occurred to the legislature, that time must be given for these court-houses and gaols to be built, and that, until they could be built, no courts could be holden there, and, of course, no actions commenced. They therefore gave one year’s time for this to be done, and ordained that the courts should not commence, in these new districts, until the year 1792. - What should be done in the mean time ? Could suits be brought in these districts, issuing from and returnable to the courts of the districts of Ninety-six and Camden, from whence they were carved ? No ; because these new districts were from thenceforth independent. ' There must have been a failure of justice in those new districts for one year, had not the legislature made provision against so serious a calamity. This they did by the clause in question, which meant to allow actions to be brought in these new districts, returnable to the old ones, as heretofore, until November court, 1791; immediately after which period, the court-houses, &c. being supposed to be built, and the juries being expressly ordered to be drawn, the new district opens and the provision expires. This construction evidently embraces the intention of the legislature, and falls under that rule, u that in the construction of one part of a statute, “ every other part ought to be taken into consideration/’ 4 Bac. Abr* 645. pi. 7, 8, 9. 14.
    2. But admitting the clause to have an operation as general as the words of it, still, it can operate only upon “ actions which shall be commenced before the 18th day of “ November next.’’ It regards only the future, and not the past | and being merely prospective, can have no operation upon actions which not only had been commenced, but-in which executions had actually been issued before the act passed.
    3. That this clause speaks of “ actions” only, and not of executions. An execution is not an action. When a statute uses terms, the import whereof is known at common law, they are to receive that sense and interpretation which the common law gives them. 4 Bac. Abr. 647. pl. 29, 30. That in common law parlance, an execution is no action. Co. Litt. 289. 4 Bac. Abr. 601. pi. 7. Thus then the 12th clause no more than the second, infringed the construction for which the plaintiif contended, and it left the act at full freedom to operate upon the case before the court.
    They then proceeded to obviate some objections which they foresaw would be made by the defendant’s counsel j and first, that if the emoluments of execution lodged with. and levied by the old sheriffs, before their offices expired, were thus to be carried into the pockets of the new sheriffs,., by force of a law enacted just about the time of these offices expiring, and after all these rights had accrued under the old laws — this would be an ex post facto law, and therefore unconstitutional, as well by the federal constitution, as by the existing constitution-of this state. The plaintiff’s counsel answered, that this term ex post facto law, had come much into fashion since the formation of the federal government ; was currently used by all orders of people, and applied whenever they perceived a law which in any degree infringed any of their present interests, and even, by some professional men, taken in a latitude of construction which, if admitted, would repress the power of legislating hereafter by general laws. Nor will the obvious intent of that instrument warrant such construction. Here the counsel went into a discussion of this term ; and endeavoured to prove that in the contemplation of the constitution, ex post facto laws extend only to crimes, and not to civil cases. The first time it occurs in the federal constitution, it stands as an obligatory precept upon the general government. “No bill of attainder, or ex post facto law shall be passed.” A bill of attainder is always a criminal proceeding, and the oth.r phrase or term is coupled with it as a more general provision, and intended to apply to cases where the other did not extend. Every bill of attainder is an ex post facto law, but the converse is not true. Had it therefore stopped at the first, congress could not have been precluded from inflicting the other ex post facto punishments. They might have fined, imprisoned, &c. Therefore, to guard the citizen effectually against that most formidable, and most odious of all kinds of oppression, the inflicting punishments for an act, which, when committed, was no crime, the convention who framed the constitution, added the latter as a nomen generattssimum. Standing thus together, they form an ample security to the citizen ; and though it might be said, that the latter clause is comprehensive enough to have rendered the former unnecessary; yet, among a people jealous of their liberties, it was natural to provide by name, against the most dangerous of all laws, (those of attainder,) and especially-, considering how mischievous they had been in times past, both in this and other countries. The next time it occurs in the constitution, it stands as a prohibition to the several states: “ No state shall (among many other 54 prohibitions) pass any bill of attainder, ex post facto law, “ or law impairing the obligation of contracts.” From, this clause it is demonstrably confined to criminal cases ; for, if it should be conceded that it extends to civil cases, it surely cannot extend to them in any other way than by 46 impairing the obligation, or frustrating the ends of civil 44 contracts.” But this interference is provided against by other words. Then the convention and the constitution might be accused of tautology in the very same sentence ; an accusation which, whether we regard the instrument itself, or the illustrious body of learned men who framed it,is equally unjust. Perhaps, on the contrary, there has never been a human production in which perspicuity and comprehensibility have been so skilfully compressed into á small compass. From hence, therefore, the plaintiff's counsel inferred, that the words' 44 ex post facto laivf and the words “law impairing the obligation of contracts,’* standing- together as they do, can never be taken to have intended the same thing. In confirmation of their construction they cited 1 Black. Com. 45. where he describes an ex post facto law, as a law by which, after an action indifferent in itself is committed, the legislature then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person who did it. They also cited The Federalist, vol. 2. p. 345, 346. where it is expounded in the same way. They further argued, ab inconveniently (which they contended. was in cases of construction, and in all elementary cases, a proper mode of reasoning,) that in the course of ordinary legislation, by general laws, it has always happened, and secessarily must happen, that some laws would operate cm some people in the nature of ex post facto huts, as i\r »r. they relate to private transactions between man and mam Whenever a law is altered- — whenever.it is repealed — -if that alteration or repeal operates in favour of any class of citizens, with relation to past transactions, it will most probably derogate from the interests of others, relative to the same transactions. The very nature of the thing supposes it. And yet shall it be said that all laws are absolutely void ? By enlarging the interests of A. those of B. are probably abridged; by suspending a remedy, a right is probably interrupted. Here the counsel instanced in several laws now of force, (alleging that the statute book Was full of them,) as
    1. The insolvent debtor’s act. By this, they said, the original remedy of charging the body of the debtor for antecedent debts, might be considered as ex post facto by the release from gaol of defendant, on giving up his effects.And this tallies with what is laid down in 4 Bac. Abr. 650. pi. 70.
    
    
      2. The various suspensions of the statute of limitations. Every debtor, by note or account, had, under the act of limitations, a right to bar his creditor, if not sued within four years ; yet this right had been baffled and frustrated for many years past; and two of the suspensions of that act have been made since this state ratified the federal constitution. By these also, many a man will lose his lands, t© which, otherwise, under the existing laws of the country, he Would have obtained a complete and indefeasible statutory right.
    3. The act relative to executors and administrators»This puts bonds and notes upon the same footing,' to the manifest injury of the former in payment of debts ; and yet, before that law passed, and at the time of the respective contracts, bonds were,by law, entitled to priority in the settlement of estates. This law has also be m passed since the federal constitution.
    4. The instalment act, which compels the creditor to wait for five years, before he can enforce the full payment of a debt due be tore the law passed. This also was passed before the ratification of the federal government by this state. All these laws and regulations, however wise and salutary in themselves, they contended, were inconsistent with that principle of the constitution, (if it extended to civil cases,) and those of them which have been passed since the federal constitution, and any others that may be passed, unavoidably and pressing as the exigencies of them may be, must, on that ground, be vacated and set aside. Therefore, from the face of the constitution itself, from the force of the authori. ies cited, and from fine absurd extent to which it must be allowed to operate, if admitted at ail, they inferred the inadmissibility of such a construction of the constitution, that ex post facto laws related to cases of a civil nature, Another objection was, that this action goes to the destruction of vested rights. They said, that even if the rights of the sheriff as to executions, were to be called vested rights, aa act of assembly has power to divest those rights. This they inferred from the four interferences which had already' been mentioned, and which could not be denied to be legal; for, as it has already been contended, they could not be called ex post facto laws. Innumerable instances of a like kind, they said, might easily he brought up ; but they denied that the right to finish the executions, make sale oí the property, &c„ were vested in the sheriff. They' here, dwelt upon this part, under the three stages which every execution was supposed to pass through in the office — -ar, 1. The entry in the office, 2. The levy. 3. The sale of the property. When, said they, does the right vest ? Not upon the first stage ; for the plaintiff may lodge the execution only to bind, and order the sheriff to do nothing till he directs it. Not upon the second j for he mny order the levy to be made, and wait similar directions. Nay, he may go and settle the debt and receive the money from the defendant, and thereby prevent the sheriff from making any sale, and, of course, deprive him of his fees for so doing. The plaintiff may, and often does, give delay and indulgence — even the attorney does it sometimes. The de» fendant niay call at the sheriff’s office, or at the attorney’s, before levy made, and pay the debt. In all these different ways, and by all these different persons) may executions be superseded. They contended, that a vested right must be also, an exclusive right; but with what propriety, then, can that be called a vested or an exclusive right, which so many persons have the power to defeat ? But if it be not so defeated, then the sheriff proceeds to the third step — to sell. At this period, then, a right does indeed accrue and vest; but what right ? A right to have the fees and emoluments for the service performed. This distinction they inferred from the 29th Mliz. c, 4. made of force in this state. Acts of Assem, 71. That act'annexes the sheriff’s percentage to the completion of the execution. The words are, “ and s£ deliver in execution.5’ But such a right as this, it was not the object or tendency of the present suit to defeat. In as far as the sheriff had performed the service, they admitted he had a right to the fees ; and only contended that the late act had transferred the right, and imposed the duty on the new sheriff, to go on and complete the unfinished executions. Having, as they contended, shewn that the executions, by the express words of the law, must be turned over, they proceeded to argue, that the emoluments for the future execution of them, must pass over also to the new sheriff. That they are the accessary appendages, and must follow their principal. ' That the law itself declared them to be such, as the words in the act of Elizabeth, above cited, are, “ for serving and executing,” &c. This, they contended, was also highly reasonable, the law having re-? quired the duty at the hands of the new sheriff, can never be presumed to do this, giving the reward to the old sheriff^. And, moreover, that the labourer was in all cases worthy yif l\is hire.
    
      Pringle, Parker, and Harper, for defendant,
    argued, that neither the execution on which he had made a levy, nor the fees accrued or to accrue thereon, ought to be turned over to the present sheriff. They said that an execution is an entire thing, and cannot be superseded when once it is begun, but that the sheriff who begins it, not only has a right, but is compellable to proceed to the final close of it. For this they cited Cro. Eliz. 440. Bucher v. Wiseman. Cro* ^/ac. 73. Ayre v. Arden. Mon. 757. 1 Salk. 322. Clark v. Withers. Barnard. 81. 6 Mod. 290. The act of assembly, passed in 1769, called the circuit court act, enacted in the same words with the former part of the clause of this act now in question ; but it never was held to extend to executions : and the uniform construction, and that which has constantly been acted under, has been, that it extended only to writs of capias ad respondendum and the like. This was the law then, and is the law now, as to every past case, though it will not be so in future, by reason of the al«. teration made by the act in question. It was the law under which the late sheriff received the executions, and which, together with the possession of the executions, gave him a right to the fees and emoluments they might create ; of which he cannot legally, and at any rate, by implication, be devested. They further contended, that this was purely a question of construction; and that, though it might appear, by a clause of the instalment law, that the legislature thought the unfinished executions were to be turned over, yet it only proves that the legislature mistook what the law was. But a mistake of this kind can never supersede the common law, which can never be altered by implication. 2 Black. Com. 380. The present, therefore, equally remains a question of construction upon rules and principles. If, then, this was a question purely of construction, and execution is, as had been shewn, an entire thing, it follows, that the ministerial duty under it is indivisible ; and the court must so construe a statute, as to make it consist, if possible, with.every other part of the law. If the act impugns the law in this respect, it can never be held to extend to cases which had existence before the law passed. They further contended, that if such construction should be given to this law, as to make it comprehend all the cases that existed at the time of its passing, it would be to give efficacy, nay, to extend, by construction, an ex post facto law, and a law impairing the obligations of contracts. This law, they said, would be both within the meaning and the reason of the clause in the constitution which prohibits ex post facto laws. Suppose that the other clause, viz. laws impairing the obligation of contract,” had been left out, would it be adjudged that interferences in civil cases were not provided against ? Surely not. The instances cited by the plaintiff’s counsel, where ex post facto laws have been passed, (admitting that they are all such,J only prove that we have done wrong heretofore, and ought to do so no more. Indeed, it was the evident object of this clause of the constitution to prevent it in future. The term “ ex post facto laws,” applies to civil as well as to criminal cases. Domat. 75. p. G. s. 2. 2 Mod. Z10. Gilmore v. Executors of Shooter. 2 Raym. 1350. They imply “ a “ law made after the act.” And they contended, moreover, that they are as pernicious when they influence civil, as when criminal cases. That the reasons, therefore, are the same ; and as interferences in private contracts, and oppressing one class for the benefit of another, had been a frequent complaint in the United States since the late war, they concluded that the convention probably had this description of evils eminently in view. But at any rate, this would be a law impairing the obligation of contracts. Here, they contended that there was an implied contract between the plaintiff and the sheriff, that the former would pay the fees for the service of the execution. To prove this, they cited 
      Salk. 209. Jayson v. Sash ; where it was held, that debt would lie for the sheriff to recover his fees. Esp. Dig. 7, 8. And in 12 Mod. -513. it is held, that a gaoler may even detain in custody the body of his prisoner, until his fees are paid. If, then, there subsists such a contract, and a law is made transferring the obligation of payment from the old to the new sheriff, the obligation of contract is clearly frustrated or impaired. Besides, from the very expressions used in the clause, it was easy to collect that the late she» riffs were never intended to be comprehended. “ The “ sheriffs of the said districts,” &c. This relates as well to the districts newly created by that act, as to any of the others. But it could then have no present relation to any sheriffs of those districts, for none existed : it could only operate in future, as to them. T he construction then com tended for by the plaintiff, would give this act of the legislature a double aspect — prospective as to some, and retrospective as to others. The fair inference is, that as the legislature had created some new districts, and altered seve-> ral of the old ones, and introduced, as to all, sundry new regulations, they intended this system to take its operation when those districts and those other regulations came into action, which was not until after the present sheriffs came into ofiice. They again argued, that the late sheriffs were1 not within the remedy of this, clause ; for, they said, thi * must be purely remedial. The inconvenience complained of, was the delay of finishing executions. To prevent this: was the redress or remedy intended. It would be absurd to suppose Shat they thought of preventing a thing which, had specifically happened. All they intended was to prevent the like in future. As to the old sheriffs, therefore, (if suffered to operate at all,) it could not operate as a remedial law, but as a highly penal one j and that would be to punish them by a law made after the fact. But, even if the clause should be held to be ambiguous, it ought to be cautiously construed, in such a manner as to preserve rights an-tecedently vested. Moreover, the words “ sheriffs of the said districts,” cannot apply to the late sheriff, for he was not in office when the law passed. The election of the new sheriff (which was on the same day on which the act was ratified, and that Was the last day of the session) was a supercession of his office, and the new sheriff, and not the old one, answered the description, and was on that day one of the “ sheriffs of the said districts.” But here, said the counsel, we are encountered by some ancient doctrine, that acts take place from the beginning of the session in which they are made, if no time is limited in the body of them for the commencement of their operation. In the first place, they answered this by contending that the ope» ration of the 13th clause was by no means shaken by what had been alleged on the other side. That, though it be true that an execution is no action, yet it is a suit; and the words are “ such actions and suits may be proceeded in “ and determined in the same manner as if this act had “ never been passed.” But, said they, the doctrine that all statutes take effect from the first day of the session is antique, and has long since been exploded as absurd. In orte case, a marriage had on the second day of the session of parliament, was dissolved by an act made during the same session. It is a prorogation that constitutes a session, (as laid down in 4 Co. Inst. 37.) but modern parliaments are seldom prorogued, but most commonly adjourned. Now, this doctrine might operate to make a statute, passed in the Seventh year of parliament, look back to acts done after an elapse of time, equal, in contemplation of law, to the life of a man. Besides, though the doctrine' has been so laid down, yet it has been held to be a fiction of law ; and though generally it relates to the first, day of the session, yet it is not a complete statute till the last day. This is laid down in Jones, 370. They cited, also, 2 Inst. 292. 1 Raym. 370. Rex v. Sail; and also relied upon Silmore v. Skitter, 4 Bac. 636, 7. Indeed, the construction contended for, would make most laws that are passed, have all the effect of ex post facto laws. But the old constitution, s. 16. puts this matter beyond controversy; for it expressly provides, that acts of assembly shall have the force and validity of law, after having the great seal affixed to them in a joint committee of both houses — which is what is commonly called ratifying the laws, Shd which, in this case, was done on the last day of the session. This, therefore, is a conclusive answer to all the plaintiff’s arguments, drawn from this law, that acts take their operation from the first day of the session.
    If, then, the sheriff was elected on the same day of the passing of this act, the court will, if necessary for the purpose, construe that election to have been prior, in order to avoid the injustice of taking from the old sheriff, who has performed the labour, the emoluments of office, and putting them into the pocket of the new sheriff, who has not,. For the argument drawn from the late constitution, s. 28» that the sheriff is elected, and of course must be in office for two years, admits of an answer from the subsequent parts of the same clause, for though elected for two years, it is there said, that he shall continue in office until the subsequent choice of a successor be made. And this evidently shews, that such choice is the point where the office of the one must cease, ancl that of the other commence. But if the construction contended for by the plaintiffs would make this act substantially retrospective, or give it the operation of an ex post facto law, or law impairing the obligation of contracts, or a law to devest rights antecedently vested, the court can never accede to it. For, it is equally unconstitutional, and repugnant to all the principles of the common law, which says, that a statute against common right and common reason, is void. That it must be retrospective, they had already shewn, as it is required to act upon cases which existed previous to its passing ; and even upon officers who ought to be construed to have been out of office. For the same reason, it had already beers, shewn to be an ex post facto law ; and also a law impairing the obligation of contracts. For there exists, in the contemplation of law, an implied contract for payment of the fees of office. With equal propriety may it be said, that this law will go to the destrur tion of vested rights : for it had been shewn, .that an execution is an entire thing, and that the officer who begins it, may, and must go on and finish. The old sheriff had, therefore, from the princij.les of law, a vested right to go on and finish the executions ; which right accrued upon the lodging of them in his office. This act, therefore, can never be so ingeniously interpreted as to devest and transfer to his successor this right. The fees and emoluments necessarily belonged to the old sheriff, as the fruit and effect of his labour, as well as the appendages of the executions themselves, that where the one goes, the other must follow. To these arguments, the counsel added, that it was highly reasonable and just, not only that the fees for services hitherto done, should belong to the old sheriff who did them ; but that he alone should have the benefit of any future emoluments to arise thereon. He was the one who, in the first instance, had taken upon himself the responsibility of executing the several processes. That he, at the expense of much labour and scrutiny, had found out the property of the several defendants, and laid the executions upon it, and that the remaining part of the duty was comparatively light and trifling. It would, therefore, be extremely unjust and prejudicial, that after he had thus paved the way by his own industry, for the accomplishment of the exigency of the executions, that the new sheriff should be allowed to enter and take to his own use, all the emoluments. In a word, they would adopt the language which had already been used by the plaintiff’s counsel, and say, that the labourer is worthy of his hire ; and, therefore, as the old sheriff had sustained the trouble and labour, to him alone ought to appertain the reward.
    Read, Holmes, and Ford., in reply,
    still insisted on the grounds they had already contended, viz. the express words of the act. That it would not be unconstitutional, on the ground of being an ex post facto law, for that related to criminal cases only ; which doctrine had not been shaken by the defendant’s counsel. That as for its being a law impairing the obligation of contracts; there was no contract in this case s or if there was, it was with the office of sheriff, and not with any particular officer. And it was immaterial to which of the particular officers it was paid; provided it was paid to the office. That as to destroying vested rights, if there were any such in the case, it was, as had been contended, a right to the fees for service, token performed, and not a right to perform. That whatever the law might have said, as to the execution being an entire thing, and could not be superseded when once it was be. gun ; this act had altered the law, as it was very competent to do. Besides, it could not be law, in the extent in which it is laid down ; for there are many things which can, and necessarily must supersede an execution. An injunction, a writ of error, and an audita querela, will substantially supersede an execution ; to which it might be added, that a receipt in full from the plaintiff, would have the same effect. As to executions being comprehended under the word “ suits,” it might be so, and still the case would not be altered; for, by referring to the former part of the same clause, we find it speaks of such suits “ as shall be com-u menced.” But it is obvious, that the actions or suits, on which the executions in question were grounded, must have been commenced, and even concluded, long before the act passed. As to its being inapplicable to the late sheriff, because he was out of office at the time of the act passing ; they said he was constitutionally elected for two years, which had not expired, nor would they expire for a month to come. That a vote of the legislature in electing a successor, was so far from being able to contravene the constitution, that an act passed with all the solemnity of legislative forms, had not the power to do it: from whence they inferred, that the election was no supercession of the then sheriff, but only a designation of the person who should succeed him, when his office should constitutionally expire. That the subsequent words in that clause of the constitution, only provided for the case where the office of sheriff might expire before the election; not when it might continue beyond it. From hence .they continue to argue, that the defendant was then in office ; continued so for nearly a month afterwards; and, therefore, that the words “ shall “ be obliged, at the expiration of his office, to turn over writs,” &c. had an evident application to him-
    
      Car, ado. vult.
    
    And now the judges delivered their opinions.
    
      
       It has since been adjudged, that this set his not altei ed the. old law in this respect. Vide post, the case of Jlitrbhm t. G'íícs/. also, the case of Sippmsv. Townsend.
      
    
    
      
       The words were these : “ Provided, that if the sheriff who has made the *cIevy as aforesaid, and does not carry the sale of the property into effect, “ that the half commissions and charges so paid to him as aforesaid, shall not “ be paid again to any other sheriff; but so much shall be allowed and fs. passed to the credit of the debtor, on account of the said execution.''
    
   Rutledge, Ch. J.

The question in this case is, whether the 7th clause of the “ act for amending the circuit court act,” which obliges the sheriffs to turn over to the sue-ceeding sheriffs, all executions, whereon an actual sale of the property, levied by virtue of such executions, has not been made, extends to the late sheriffs, and particularly the sheriff of Charleston district. On the fullest consideration, I am of opinion that the construction contended for by the plaintiff, is not warranted by the intention of the legislature, or by the words of the act. By the preamble, the legisla» ture declare, that the several circuit court acts require amendment; they therefore proceeded to make the several amendments which appeared necessary. Amongst others, it appeared necessary to make an alteration in the bounds of some of the old districts, and to create two other district's. This is done. The old names of Charleston, Georgetown, Cherazv, Beaufort, Orangeburgh, Camden, and Ninety-six, it is true, are retained ; but the bounds of several of the old districts are altered. Pinckney and Washington are 'created; and the bounds of every district are -established by the Sd clause of this law. No reference-, is had to former bouhdaries* nor in this respect, to any,former law. As a necessary conséqtíence'of creating.- new districts, sheriffs for them were to be appointed. The 14th section of the law declares, that they shall be immediately appointed ; and they were accordingly «appointed. Sheriffs were also appointed for all the other districts established by thqt act. By the old law, a sheriff going out of office, was obliged to deliver to his successor, all writs' and processes unexe-cuted, and he was obliged to execute them. This did not relate to executions. Among other amendments which the old law required, the legislature considered that a sheriff on going out of office, should be obliged to deliver to his successor, not only writs and processes unexecuted, as the former law required ; but executions on which sales had not actually been made. The 7th section, therefore, says, that the sheriffs of each of the said districts shall be obliged, at the expiration of his office, to turn over to the succeeding sheriff, all such executions, &c. To what do the words “ said districts,” refer ? Manifestly to the districts of Charleston, Georgetoxvn, Cheraw, Beaufort, Orangeburgh, Camden, Ninety-six, Pinckney, and Washington; and to those districts established and described by this laxv. It is therefore evident, in my opinion, that the act had no retrospect and can operate only upon the present sheriff, and his successors.

Burke, J.

It is admitted that on .the 19th of February last, the new sheriff was elected under the' new state constitution : and that after this election, but on the same day, the present act was ratified by both houses, and passed into a law. If we consider the election of the new sheriff — the displacing (of course) of the old — and the passing of this act: viewing these three circumstances in the order of time in which they respectively happened ; we shall find that the business of the two sheriffs was ended, and their situation fixed and settled before the law passed. Prior to its ratification, the new sheriff’s right to perform the service of the sheriff’s office for two years, and to receive its fees and emoluments, was fully vested in him, exclusively of any other person. The right of the old sheriff, to either, ceased : except as to the few cases of levies made, which the old laws and usage of the office, had referred to be executed by the old sheriff. And in this situation was the old sheriff and the new, at one moment, on the 19th of February; and in a few moments, or hours afterwards, on the same day, the act referred to, was ratified. These are the facts and circumstances of this case ; which, in my opinion, turns upon one point: that is, the period or moment of time when the operation of the act commenced. For if it commenced before the election of the new sheriff, and displacing of the old one, there would be ground to argue that it would be binding on the old sheriff, though he was not expressly mentioned in the act. But if the law began to have effect only from the ratification, then it is much clearer, that the old sheriff’s right to go on with the executions levied, is not at all touched or affected by it. The first day of the session, has been argued as the date of its commencement. This doctrine though laid down by several lawyers, is not worthy of a serious refutation. Even in England, there is as little of law or truth in it as there is in this country. When ncs particular time therefore, is mentioned in the act, for its beginning to take effect, the beginning of its existence is the rational and natural time, and not the first day of the session. The reason and nature of the thing fixes it. But if this were not the case, the late state constitution settles the point, and fixes a day for this and all other acts of the legislature. It is the 16th section, art. 1. and the clause is worthy of commendation, as it settles a point before disputed, and fixes a time, prior to which our future laws cannot operate, blit obliged them to commence in futurity, and operate on future events — to look forwards and not backwards. In short, it prevents retrospective and ex post facto laws. In the case before us, its efficacy beginning from the moment of its ratification, it cannot be so construed as to have a retrospect, and devest rights that were vested in the old sheriff, under the old laws and constitution of the state. It does not appear to have been the intent of the legislature to devest such rights, or they would have bound the old sheriff by express words. But the act has done no such thing 5 having been passed, and beginning to operate after the election of the new sheriff. It left both the new and the old sheriff as it found them- — the one out of office, but invested by the old law, with a right of proceeding with levies already made, and of receiving the fees and emoluments thereon— the other in his office, entitled to the emoluments of his la-bour ; but gave him not the fruits of his predecessor’s $ whereas the contrary construction makes the law to do a manifest wrong by devesting the old sheriff of a common law right, sanctioned by the constitution and the laws, under which he accepted his commission. The cases and authorities quoted in the course of the arguments, do not, I think, generally apply in this, which I take to be a new case. The case of Gilmore v. Executors of Shooter, 2 Mod. 310. comes nearer than any of them to the present. There judgment was given for the plaintiff, by the court, on the very principle on which I ground my opinion; because to use the words of the reporter, it cannot be presumed that the statute 29 Car. II. c. 3. was to have a retrospect, so as to take away a right of action, which the plaintiff was entitled to, before the time of its commencement, I do not think it is against my opinion, if I shall be thought to make fractions of a day against the maxim. I only consult the order and priority of time in which the circumstances which governed the case happened — a thing which may possibly arise in other cases. I shall put one case that may arise out of the act which abolishes the right of primogeniture. Supposing that act passed in the evening, and on the morning of that clay, a father should have died, leaving several sons and a landed estate. Here would arise a question pretty similar to the present, relating to the order of time in which the death happened, the descent fell, and the act was ratified. I do not say how this matter would be determined ; I only state it to shew, that this and other cases may require a fraction of a day to be made, in order to fix the relation which certain facts and statutes bear to one another, as in the case before us.

It has been urged in favour of the plaintiff, that the old sheriff having been elected in March, his time of official service was two years, under the old constitution; and did not expire, nor was the new sheriff in office until, March next, after the ratification of this act. A.nd they argue,, therefore, that the act overtakes and binds the old sheriff. In answer to this, it is sufficient to observe, that the old constitution was entirely annihilated and repealed by the new, on the meeting and sitting of the legislature under the latter. The very election of the new sheriff and other rotation officers, which took place, is contemplated — nay, mentioned by the 8th clause of the additional articles ; so that the old state constitution did not exist when the election of sheriff took place. As to the unconstitutionality of ex pest facto laws, there is no occasion here to refer to or apply them. Nor can I say what turn the case would take, if the legislature had ratified the act prior to the election of the new sheriff. Even then I should respect the right of the old sheriff, and be apt to consider him as holding his office and the emoluments arising from it, by virtue of a contract between him and the state, under the laws and old constitution; and I believe my judgment should be for not devesting him of that right, and conferring it upon another, by any construction drawn from implication.

Bay, J.

I have the misfortune to differ from my brethren on this question, and shall therefore, deliver my opinion and reasons at large. The principal grounds relied on for the defendant, are the following, viz. 1. That, by law, he was not obliged to turn over executions — for executions being an entire thing, he who begins must end theim 2. That the late law can never be so construed, as to affect him. 3.. That if it should, it would be an ex post facto law, and therefore void. 4. That the defendant is entitled to half fees, at any rate. In order to have a proper clew to this question, I shall consider, 1. What the law was before the act passed, with regard to sheriffs. 2. What the mis-chiefs were, which this act meant to guard against, between the old and new ones. 3. What is the extent and nature of the remedy provided by it.

1. With regard to the first point, I shall begin by ob« serving on the common law. All sheriffs were formerly appointed by the king, durante bene plácito ; were removable by him : and there was no fixed time for their conti-iJm ... nuance in office, as we have by our constitution. "When a new sheriff was appointed, and had taken the oaths of office, allegiance, &c. a writ issued^ called a writ de exonerate officii, which discharged the old sheriff. Then another writ issued to the old sheriff, for delivery of his county rolls and writs, &c» to the new sheriff. The next thing was, that the new sheriff, at or before the first county court, was to take Over, from his predecessor, all his prisoners and writs, pre« cisely by view, and by indenture made between them, whereas in all the causes which the old sheriff had, against every prisoner, was .particularly set forth, or else the new sheriff was not chargeable with them. Compl. Shff. 11. 3 Cro. Rep. 72. IVerbic’s case. So far, then, with regard to the appoiutment of new sheriffs, and discharge of old ones. The republican- principles of our states made them elective, and fixed the period of continuance in office. But it was clear, by the common law, that the old sheriff of a county was still sheriff-\ and continued in office Until the new sheriff was sworn, although he was chosen before ; u for it is u the oath that doth complete him in office.” Compl. Shff. 11. Cro. Eliz. 12. Moore, 188. 364. 3 Rep. 72. The 20 Geo. II. c. 37. more particularly prescribes the mode of turning over writs and process, from old to new sheriffs, by indenture and schedule. But this was not introductory oi any new law, but only declaratory of the old ; with this only difference, that by the common law it was to he done at the next county court, but by this act it was to be done at the expiration of office, and he was made liable to the damage if he did not. The 11th clause of die old circuit court act, passed in 1769, is a transcript of the act of Geo. 11. c. 37. except as to the second clause, which in that act says, that! the sheriff shall not be liable to be called on for return of any process, unless required within six mon-hs after his office expires. Nothing, however, either in the statute of Geo. II. or in the 11th clause of the old circuit court act of 17C>9;< related to executions. They depended on the principles of the common law in Englandand do so still: and so did they here, until the passing of the late act. By the common law, an execution is an entire thing, and he who begins musí end it. If, upon a fieri facias, a sheriff seize goods, he re-' turns that they remain in his hands, pro dejecta emptorum? and he is removed ; yet he, and not the new sheriff, is te proceed to the execution. lie acquires a property in the goods, by the seizure which devests the owner. He may maintain trespass or trover for them : they are in him by operation of law, until sale is made. This, then, opens the door for the application of the law, and all the authorities which were cited with so much ingenuity from Bacon, Salk,, Halt, 6 Mod. Cro. Jac. 4 Inst, and all the authorities which went to establish this point, and which were so ably com» merited on by the counsel, in the course of the argument. It is good law in England at this day, and was so here until a late day, to wit, until altered by our late act of assembly« Thus far, with regard to the law, before the passing of the last circuit court act, which brings me to consider,

2dly. What were the mischiefs intended to be guarded against by this act. And here I must observe, that they are not particularly mentioned or recited in this act, because it embraces a great variety of objects. It alters the times of holding the courts of justice in this state ;• it ’ creates new districts, regulates the manner of proceeding in some degree, and introduces a number of new and excellent regulations, which were unknown in former laws. And, among other things, it prescribes and regulates the mode of turning over unfinished business, from the old to the new she-3 riffs. It only recites, generally, “ that the several circuit 5£ court acts, in this state, require amendment.” The inconveniences under each head, are not mentioned, but must be collected from the general complaints of the people, and the difficulties which occurred in the course of conducting business, and which gave rise to the regulations. Those which happened upon the going out of the old, and the coming in of the new sheriff, required great attention. Formerly the office was held by a provost-marshal, during pleasure, who generally kept it a number of years, so that these inconveniences were seldom felt. But by our late constitutions there was an election every tzvo years, which occasioned a rapid succession in office j and, as there was a great accu-mutation of business, there was generally left in the hands of the old sheriff, a large arrearage unfinished and unexecu-ted. The old sheriffs generally retained the unfinished executions, as by law they might do, for a final settlement. And as pa} ment of debts was suspended, by a number of interfering laws, it was, frequently, many years before the business could be closed. At the same time, it was very difficult to know the state of the executions, and the security for payment of them ; and what rendered this difficulty greater, was, that every succeeding sheriff knew nothing of what had been done by his predecessor on these executions, but was totally isi the dark respecting- them. They often (as a consequence) seized property which had been bound by prior executions, of which they were not apprised until the hour of sale, while parties were obliged to apply to one, two, or three sheriff’s offices, in order to know the real state of the business. Add to this, also, that many of the old sheriffs, having gone out of office, were not very punctual,but often very inattentive to the remaining duties of itj and were not very alert in settling executions, which they knew they could retain and settle at their leisure. By this means, creditors were left in the dark respecting their debts, and the gentlemen of the bar, w ho conducted the business, were, themselves, unable to inform them. These, therefore, were some of the inconveniences that gave rise to the regulations which are the subject of the present debate; and the clause of the act upon which the plaintiff now founds his claim, and the subsequent one, which requires all sheriffs to make a return, on oath, of all executions, within ten days after the return day, were introduced,-in order to give consistency and despatch, regularity and certainty, in the sheriffs’ offices throughout the country; that every man, at one glance, might see the real situation of every execution in the state. And this brings me,

3dly. To consider the nature and extent of the remedy provided by this act.- The 1st clause establishes the powers of the different courts. The 2d fixes the time and places of holding them. The 3d describes the boundaries of the districts, and creates two new ones. The 4th defines the power of the judges. The 5th directs the mode of issuing executions. The 6th regulates the proceedings of the court. And the 7 th clause, which is the one now under consideration, prescribes the duty of the old sheriffs, upon going out of office, and the manner in which thet? shall turn over the business of the office to their successors. The first part of this clause relates to xvrits and process, and says, that they shall be turned over in the same manner as directed by the circuit court act of 17*69, which is a copy of 30 Geo. II. c. 37. The latter part of this clause goes one step further, and says, that all executions shall also be turned ever, where no actual sale of the property has been made. Here, then, for the first time in the history of our legal jurisprudence, are executions directed to be turned over to new sheriffs, in the same manner as writs and process, This controls the common law, and is introductory of a new law on the subject. This, then, is at once an answer to all the common láw authorities which have been cited on the ©ccasion. The 8th clause of the act goes on, and directs the mode and manner of return the sheriffs are to make of all executions into court. But, say the counsel for the defendant, although this 7th clause does alter and control the common law, with regard to turning over executions in future ; yet it shall not be construed to have a retrospective operation, as the defendant, Huger, was not in office when that law passed. I will only observe, here, that part of this clause will admit of this kind of construction, (if it were necessary to resort to it,) though the former part be doubtful, if or it says, “ all executions whereon he hath not made lí actual sale of the property,” &c. I do not, however, con» ceive that there is any occasion for having recourse to this kind of retrospective construction. All the sheritts in this * o • p county, held their offices, under the late constitution, ror two years certain. This is not denied. No law could deprive them of this right, or alter the term ; it would have been unconstitutional. They held their offices for the time, as sacredly as the judges held their commissions during good behaviour. And this, it has been determined, neither the convention itself, nor the legislature, could interfere in. Taking this, then, for granted, let us see how the matter will stand. The late sheriffs were chosen towards the end of diarchy 1789, as may appear by the journals of the house ; of course they had a constitutional right to hold and exercise their offices until the end of the same day in March, 1791. Nothing could destroy this but a removal by impeachment. The present law passed the 19th of February, 1791, more than a month previous to the expiration of the old sheriffs’ offices ; of course, the present act found the defendant, Huger, in office; and if so, he is clearly bound by it.

The present law does not extend back to the first day of the session, because the 16th section, 1st article of our constitution, fixes that point. There is no occasion to put such a construction on it, as has been ably contended in the argument. The plaintiff, Osborne, it is agreed, was elected on the day the law passed, the 19th of February ¡ but did not qualify till the 16th of March following. But this election gave him no power to act, agreeably to the common law already observed upon j because it is there laid down by Lord Coke and many others, that the old sheriff still continues in office (though a new one is chosen) till the new one is sworn in ; “for it is the oath that com~ “fletes him in office.” The election only determined who should succeed the defendant, Huger. But the plaintiff, Osborne, had no right to enter on the duties of his office, even after the 16th of March, although sworn ; because the former had a constitutional right to exercise it until the end of March, and the plaintiff was not regularly in office until the term expired. Upon the whole, therefore, I am of opinion, that Huger, the defendant, comes under the letter and spirit of the 7th clause of this act, and that he ought to turn over, not only all writs and process, but all executions also, to his successor, according to the terms of the law. As to its being an ex post facto lazo, there is no occasion to go into che consideración of it. To suppose that the supreme legislature of a sovereign country, has no right to regulate the conduct of its officers and the mode of business, would be straining the matter far indeed. With regard to the half commissions mentioned in the 10th clause of the instalment lazo, I conceive they are vested rights ; and the defendant had a power to receive them long ago from the debtors, with fees and charges ; and there is nothing in this clause which has or could deprive him of them. The proviso in the 10th clause of the in» stalment law, leaves an opening for the clause in the present law ; and one would think it had this part of the act in contemplation, by saying, that the half commissions received by the old sheriff, should not be paid to, but should be credited by, bis successor. And this division of fees be» tween old and new sheriffs, is not altogether novel. For by the 3d Geo. L c. 15. when any sheriff shall extend any goods to the use .of the king, and shall die, or be removed from office before a venditioni be awarded for sale, and a writ be awarded to a subsequent sheriff, who shall sell; the barons of the exchequer shall settle the fees and poundage between the old and the new sheriff, agreeably to the trouble each had in the execution of the process. Here it is not left to the judges to fix it, but it is ascertained by law. Having thus stated my reasons for differing from my brethren, I submit with respect to the opinions they have delivered on the subject.

Per Curiam.

Judgment for the ¿lefendanU  