
    The State ex rel. Simon Moses v. James D. Mitchell, Ordinary, et al.
    
    The ordinary has no jurisdiction to order the seizure, out of the hands of persons in possession, and claiming title, of goods said to belong to the estates of intestates, although there has been no administration: And where the ordinary issued a warrant directing such seizure, a prohibition was granted.
    No one can be disseized of his freehold, despoiled of his goods, or deprived of liberty, or life, without being heard ; nor otherwise than according to the forms of law.
    Before Mr. Justice Bay, at Chambers, Charleston, January, 1831.
    This was a suggestion for a prohibition to be directed to Jas. D. Mitchell, Esq. ordinary, C. J. Steedman, sheriff, and Edward Wood, constable, all of Charleston district, to stay the execution of a certain warrant under the hand and seal of the said ordinary.
    The suggestion set forth, that in December 1830, and January 1831, the relator became the purchaser for a valuable consideration, of four slaves, of whom he was in peaceable possession, by virtue of his said purchase, until they were attempted to be taken from him, under the authority of a warrant from the ordinary, in the words following:
    “ South-Carolina, Charleston district. By James D. Mitchell, Esquire, ordinary. To the sheriff of Charleston district, or any of his lawful constables. It appearing to my satisfaction that none of the kindred of Joseph Dorrill and Rachael Dorrill his wife, of Samuel Dorrill and Rachael Dorrill his wife, or of Frederick Steading and Rachael Steading, his wife, will take administration of the estates of the said persons; I do hereby, by virtue of the power vested in me, to grant letters ad colligendum bona defuncti, authorize and direct you to take into your custody and possession, the following negro slaves, belonging to the said estates, and now said to be in possession of one Simon Moses; to wit, Toney, Binah, Peter, and Ciby, and then to deliver the same to John Murphy, who is authorized to hold them for the benefit of the minors interested in them ; and to return to me your actings in the premises. Witness my hand and seal, this 28th January, A. D. 1831.” Which warrant was duly , , . ,, ,, ., ,. J signed and sealed, by the said ordinary.
    The suggestion further alleged, that the said warrant had been placed by the sheriff in the hands of Edward Wood, one his constables, to be executed, and that the said Wood was attempting to dispossess the relator. Wherefore a prohibition was prayed.
    The respondents produced and read affidavits of the facts, on the foundation of which the warrant was issued ; and his Honor, after hearing counsel, refused the prohibition.
    A motion was now made to reverse the decision on the following grounds:
    1. That their being neither will nor administration, the extent of the authority of the ordinary was to grant letters ad colligendum; which would not authorize an action for the effects, except when they had been taken out of the actual possession of the person, to whom the letters were granted.
    2. That if an action could be maintained under other circumstances, the fact, that there was a remedy at common law, would exclude the jurisdiction of the ordinary.
    3. That the ordinary has in no case a jurisdiction to try questions of property; and so no jurisdiction where, as in the present case, a person in possession claims a right of property.
    4. That the ordinary undertook to condemn a citizen unheard, and to order execution without even a citation to appear.
    5. That the pretended writ, or warrant to the sheriff, was, in all respects, a manifest usurpation, unprecedented, unlawful, and against common right.
    H. S. Legare, for the motion,
    was stopped by the Court.
    Yeadon, contra.
    
    Lord Coke observes, in Hensloe’s case, 9 Rep. 38. b. “ that of ancient time, as appears by record, when a man died intestate, and had made no disposition of his goods, nor committed his trust to any, in such case the King, who is parens patriae, and has the supreme care to provide for all his subjects, that every one should enjoy that which he ought to have, used by his ministers to seize the goods of the intestate, to the intent they should be preserved and disposed for the burial of the deceased, for payment of his debts, to advance his wife and children, if he had any, and if not, those of his blood. And this appears in Rot. Claus, de 7 H. 3. m. 16. Bona intestatorum 
      
      capi solebant in many, Regis, Sfc. And afterwards this care and trust was committed to ordinaries, for none could be found more fit to have such care and charge.” Lord Coke reiterates this opinion in several places in his Institutes; and a number of ancient authorities may be adduced both in support of this power originally in the crown, and its transmission to the ordinary. vide 2 Brev. 88, note, and 2 Bl. Com. 494, where a number of them are cited.
    The powers of ordinaries in this country have never been accurately defined; but as well in the English statutes made of force here, and the acts of our own Legislature in relation to them, as in the practice in this State, from the earliest times, it appears to have been always taken for granted, that their powers and jurisdiction in regard to the estates of deceased persons, are eo-extensive with those of ordinaries in England. It is true, that since the St. 31 Edw. 3. c. 11, ordinaries are compellable to grant administration; but where there is no one intitled to, or willing to take administration, the ancient power of the ordinary remains unimpaired. 2 Bl. Com. 505, and it is only by virtue of this power that he is authorized to grant letters ad colligendum bona defuncti. Ib. Now, it may be conceded that such letters afford no authority even to maintain an action ; but non constat that therefore the ordinary has lost his ancient power to seize. And it may be admitted even, that the ordinary himself could not maintain an action ; and for this Hensloe’s case is an authority. Still it does not follow that the ordinary in his judicial character may not seize the goods of intestates. The absence of the one authority renders the other absolutely necessary ; for without it the property would be without protection even against robbery.
    But then it is said, that this is an invasion of Magna Charta, and a violation of common right ; and that it is condemning a citizen unheard. This is surely altogether a mistake. The ordinary decides no question of property ; or if he does, it is only prima facie. It is not pretended that his decision is conclusive ; but the true character of his act is a taking of the goods into the custody of the law for safe keeping. Let it be borne in mind, that the ordinary is a judicial officer, known to, and recognized by the laws and the constitution. It is not to be presumed, that he would act in any case, without adequate information ; and in the present case he did act, only upon the strongest ev^ence" ^£a'ni if the party divested of possession be really Ú'1 titled {0 there are a number of ready and competent modes °f asserting his right : But if in fact he has no right, and the or<^nalT *s not possessed of thp power contended for, then there is a great and gross evil and injury, for which the laws furnish no remedy.
    Take the present case as an illustration. It appeared by the evidence, that the parties intitled to the slaves in question, are all minors, with the exception of one, who is less or worse than a minor; for naturally weak, almost to idiocy, he is rendered still more unfit for business by depraved habits, and is an easy dupe of any unprincipled knave. Of this man the relator purchased the slaves, as it was most clearly proved, for scarcely a fiftieth part of their value ; having given no more than an average of about ten dollars a piece for four valuable slaves. The minors arc disqualified by law from asserting their rights in the ordinary forum ; and they have no friend who will assume the burden of an administration, and maintain their rights for them. So that they have no means of redress whatever, but that which has been pursued. And if there were not much both of general utility to recommend, and ancient authority to sanction that course, there is in the case itself every argument to strain the law to the utmost for their relief.
    These views are submitted tp the consideratión of the Court for what they are worth. The warrant in question is perhaps a novel process ; it certainly is not to be found in the Registrum JBrevium. It was an invention of the ordinary’s; but if it is sanctioned by principle and authority, and tends to advance the great object of all laws, the doing justice between parties, that ought to be a sufficient authority for the use of it, and a prohi- ■ bition ought not to be awarded.
    It is only necessary to remark, in conclusion, that if the ordinary had authority to issue the warrant, it was properly directed to the sheriff, who is required by the act of 1799, 2 Faust, 316, to execute all process directed to him by the ordinary.
   Johnson J.

delivered the opinion of the Court.

The case stated, supposes, that the relator, Simon Moses, fraudulently possessed himself of certain slaves, the property of an intestate estate, when there had been no application for administration, nor any granted; and the question raised, is, whether the ordinary was authorized under any circumstances, to issue process to the sheriff and his officers, commanding them to take the slaves out of the relator’s possession, and deliver them to another. It is not necessary to refer to Magna Charta, or our own constitution, for the rule, that no one shall be disseized of his freehold, despoiled of his goods, or deprived of liberty, ov life, without being heard: nor otherwise than according to the forms of law. It is a rule of common right, and in some shape or other is engrafted upon the constitution of every civilized country. That it has been violated in this instance, is too palpable to admit of any doubt. The slaves were in possession of the relator, who claimed them in his own right. If he possessed himself of them without right, he subjected himself to an action of trespass, trover, or detinue, at the suit of him who had the right. Of such action our Courts of common law had exclusive jurisdiction, and in them the right of trial by jury is secured by the constitution. And yet the ordinary has assumed the power of deciding the question of right against him; and without making him a party to the proceedings, has awarded process h deprive him of the possession.

It seems that by the ancient common law of England, the right of administering the goods of one dying intestate, belonged to the crown ; and it is said by the ancient writers, that the King was intitled to seize them, as parens patriae, and general trustee of the kingdom. 2 Bl. Com. 494. And it has been contended in support of the ordinary, that he has succeeded to this branch of the prerogative; and if no one will administer, it becomes a matter of duty in him to seize the goods, to preserve them for those who are intitled, and prevent their being eloigned or destroyed. The act of 1789, P. L. 472, prescribes the mode in which the ordinary may obtain administration, and it may be questioned, whether he has any power over the goods of an intestate estate, without administration. But I have not thought it necessary to this case, to consider that question; for if it be conceded, still that would not justify his using force to obtain possession, and of his own head to lay violent hands on whatever he may please to claim in right of the intestate. When the books say that the King may seize the goods, I do not understand it to authorize lawless violence, but a seizure according to the forms of law: and the fact that the books contain no memorial of a precedent for this most summary proceeding, is itself sufficient authority that none such ever was in use.

The necessity of using it as the means of protecting the rights of minors and others, under such like disabilities, has been resorted to in support of it. But that necessity can very rarely arise in practice. The stimulus of interest and humanity are generally found sufficient; and when these fail, the ordinary could not better manifest his paternal care over this unfortunate class of persons, than by administering himself, in the manner provided for in the act before referred to. If none of these should be found sufficient, then the minors are only in the same situation in this respect, that they are in relation to all other rights that devolve on them, or of which they are possessed. In any possible view this proceeding cannot be sustained. The motion is therefore granted; and it is ordered that a prohibition do issue, to restrain the execution of the process set out in the proceedings.

Prohibition granted.  