
    Hooe & Harrison v. Thomas Pierce, Administrator of Thomas Pierce.
    October Term, 1793.
    Escape of Slave to Enemy — Libel under Wrong Name-Effect upon Rights of Original Owner Where He Was Not Made Party. — A slave who went by the name of Taliver, the property of the defendant, fled from his master to the enemy, and was afterwards recaptured by an American vessel of war. He was libelled and condemned by the name of Jack Robinson, and being sold under the sentence, was purchased by the plaintiff. The defendant got possession of him under a warrant issued in virtue of the Act of Assembly, passed in 1783, c. 8, Rev. Laws, p. 157. Decided that the sentence and sale were not binding upon the former proprietor, as he was no party to the suit, and the slave was not libelled by the name he had usually borne. Aliter, if the condemnation had been by a foreign Admiralty Court.
    Same — Prize—Insufficient Finding of Jury — Effect.— The above slave was not a lawful prize, the jury not having found that he belonged to an inhabitant of Great Britain, or that he was taken in war.
    Bona Fide Sale — Effect upon Equitable Rights — Legal Rights. — Though equitable rights may, in favor of a fair bona fide purchaser, for valuable consideration, and without notice, be lost by a sale; legal rights never can, unless there can be fraud.
    Detinue — Case Agreed by Executor — Effect. —In deti-nue, the jury found a verdict for the plaintiff, if the Law upon the facts agreed to be stated, be for him, otherwise for the defendant. — Before they were agreed, the defendant died, and a scire facias issued to his executors, to show cause why the facts should not be agreed. The executors appeared and agreed_ a case. This will bind them, though they might have refused to agree a case, and have insisted upon abating the suit.
    This was an action of detinue for a negro, called Jack Robinson, alias'Taliver, instituted by the appellants, and determined in the District Court of Suffolk. The jury found a verdict for the plaintiff, if the law, upon the facts agreed to be stated, be for him, if not, then for the defendant. Before these facts were agreed, Thomas Pierce the defendant died, and a sci. fa. issued against the appellee, his administrator, to> shew cause, why the said facts should not be agreed, and the matter of law thereupon argued. The appellee appeared, and the parties agreed the following case.
    That on the day of July 1779, the Bishop, an enemy’s vessel, was taken on the high seas by the General Washington, an American vessel, belonging to citizens of the United States. That the stave in the declaration mentioned, was on board the Bishop at the time of her capture, and was then known on board by the name of Jack Robinson. That the vessel and cargo, together with the slave, was brought into Virginia, and condemned as lawful prize, and purchased under the sentence *of the court, by the plaintiffs. That the slave in question, was once the property of the testator of the defendant, known by the name of Taliver, and so continued, until the year 1777, when he ran off from his master, and got on board a British vessel. That the slave, Jack Robinson, was taken from the possession of the plaintiff in September 1783, by the defendant, in pursuance of a warrant, granted according to an act of the General Assembly passed in 1782,‡ entitled, “An act for the recovery of slaves, horses and other prop-ertjr, lost during the war,’’ and that he still detains him.
    If the court shall be of opinion, that by the sale of the slave under the sentence aforesaid; the defendant lost his property therein, then judgment to be entered for the plaintiff, otherwise for the defendant.
    The District Court gave judgment for the defendant, from which the plaintiff appealed.
    Bee for the appellants.
    The only difficulty on the part of the appellants, is created by the special conclusion of the jury, which would seem to confine our title, to the purchase made under the sentence of court, in a suit, to which Pierce was no party. And yet, hard as it may at first appear, that the rights of third persons should be affected by judgments, as to them, ex parte ; ye1, it is better, that a private injury like this should be sustained, than a public inconvenience produced, by discouraging persons from purchasing under the judgments of courts having competent jurisdiction : a consequence to be certainly expected, if the title of the purchaser could after-wards be questioned.
    The appellants claim a right to the slave In question, under the acts of congress, passed in 177S, and 1776, making slaves, the subjects of lawful prize.
    Wickham for the appellee.
    It appears from the facts agreed in the cause, that the enemy did not acquire the slave in dispute, by plunder, in which case only, the property, by the law of nations, is changed. On the contrary, it is agreed, that the testator’s right was not divested by any acl of his own.
    But, if the slave had actually been seized by the enemy, in action, the recapture would revest the property in the original -owner, by the right of postliminium, which extends to all kinds of property taken in war, except moveables; and these, *on account of the uncertainty in identifying them, are never restored. It is true, that slaves are not mentioned in any modern cases, because they are a property, unknown in the greatest part of Europe. But Valtel states, that amongst the •ancients the right of postliminium extended to them. However, a discussion of this point is rendered unnecessary, by the special conclusion of the verdict — I shall proceed then to consider the title of the appellants, as derived under the sentence and sa ie.
    There is no principle more clear than this, that in Courts of Common haw and Equity, those only can be affected by their judgments or decrees, who are parties to the suit, or those who claim under them. I acknowledge, that the sentence of a court of admiralty is binding upon all persons, who are in possession of the property, or who claim under those who are; because, the parties interested are not known, and consequently not named. But in this case, Pierce was neither in possession himself, nor did he claim under any person who was: his title was adverse to that, claimed, by the enemy and the captors.
    If there be a decree for the sale of mortgaged property, it was never contended, that the rights of third persons, not parties to the suit, could be thereby affected.
    I shall not acknowledge the authority of the resolutions of Congress, which have been read, because, that body were cloathed with no powers fo legislate for the respective states; but if they were, these resolutions, being no more than private regulations, and not being found, cannot be noticed by the court.
    I will beg leave to submit to the consideration of the court, another point, which tho’ not connected with the merits of the cause, is certainly very important. The suit was abated by the death of Pierce, and ought to have been so entered. Detinue will not lie against an executor, for a conversion, or in consequence of a detainer by the testator, nor unless the property after-wards come into the possession of the executor. The judgment is for the slave, if to be had, if not, the value. Now the executor cannot perform one of the alternatives, if he never had possession of the property. Bro. Ab. 227 — Cowp. Eep. 371_, in which it was determined, that the action would not lie against the executor, for a finding and conversion by the testator.
    The jury therefore, should either have found, or the parties have agreed a detainer by the appellee. It may perhaps be contended, that the act of 22 Geo. II, C. S, $ S, which declares, that the death of either party between verdict and judgment, shall not abate the suit, furnishes an answer to this point. But *that law must mean, a perfect verdict, and not such an one, as might be set aside, and a venire de novo awarded, or which either party, by refusing to agree the facts, must render ineffectual. Neither can I admit, that the appearance of the executor, and his actually agreeing the facts, will alter the case; because, he only did, what the writ of sci. fa. commanded him — besides, this agreement can extend no farther, than to the facts themselves, and cannot cure the errors before committed.
    Eee in reply.
    The act of Assembly which Mr. Wickham has read, seems to apply strictly to this case, because, it speaks of verdicts generally, without distinguishing between perfect and imperfect verdicts. But if this were an imperfect verdict, the court, upon the trial of the sci. fa. would direct a new trial, and not an abatement. The intention of the law was, to prevent the operation of the act of limitations.
    
      
      Equitable Rights — Effect upon Purchaser without Notice. — Equitable rights may be lost by a sale to a purchaser without notice. Taylorv. Stone, 2 Munf. 315, citing Hooe v. Pierce, 1 Wash. 217. Por 'this proposition the principal case is cited in Jones v. Roberts, 6 Call 197; Claiborne v. Henderson, 3 Hen. & M. 358; Jones v. Roberts, 3 Hen. & M. 441.
      And in Green v. Price, 1 Munf. 453, citing the principal case, it is held that, a mortgagee without notice, shall be protected against a prior eauitable title; if the person having such title, either encouraged him to take the mortgage, or, knowing of his intention to take it, stood by, and made no objection. See also, as bearing on this question, Applebury v. Anthony, 1 Wash. 287; Taylor v. Cole, 4 Munf. 351; Pollard v. Cartwright, 2 Hen. &M. 116; Biggers v. Alderson, 1 Hen. & M. 54; Cringan v. Nicolson, 1 Hen. & M. 429; Southall v. M'Keand, 1 Wash. 336.
    
    
      
      Detinue. — See monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578-ÍRev. Laws, Page 157, Ch. 8.
    
   The PRESIDENT

delivered the opinion of the court.

The first question to be considered is, w'hether the suit ought to have abated, by the death of the original defendant.

The act of Assembly declares, that the death of either party between verdict and judgment, shall not abate the suit, but that judgment shall be entered, as if both parties were living.

It is contended, that this is no verdict, and therefore, not provided for by the law. It is true, that verdicts must be certain in themselves, or such as may be made so, by reference to that which is certain.

It is common for them to refer to records or to other papers equally certain. On a demurrer to evidence, a conditional verdict, dependent upon the opinion of the court as to the demurrer, is common and proper. So a verdict, to depend upon the opinion of the court, on a case stated on the record, is an usual and legal proceeding. Cases agreed, are sometimes substituted in the room of special verdicts. But it is very novel, to find both in the same record, and connected together. Even this might have been unexceptionable, if the verdict had referred to a state of facts before agreed to. But to supply the uncertainty of a verdict, by referring to that, which, so far from being certain, did not exist for five years afterwards, cannot possibly be right. Suppose the parties had refused to agree a case; or had in reality disagreed about the facts: this might well have happened, and what could have been done. The court could not coerce them to agree upon a case, nor could any thing be substituted in its room.

We can find no cases determined in England, upon the statute of the 8 and 9 Will. 3, C. 11, (from which our law was copied,) like to the present.

*Upon principle, we have no doubt, but that the administrator was not bound to cure the uncertaintj' in the verdict, by agreeing to a state of facts, of which he might be totally ignorant, because his intestate having more knowledge of them had consented to do so. — That he might therefore have abated the suit, if he had chosen it, is clear. But he certainly might wave this advantage, and prefer a trial upon the merits. This he has done, by agreeing to a state of facts. But then, the cause must rest upon the agreed case, independent of the verdict.

Upon the merits, there is not much difficulty. The condemnation in the court of admiralty, could not bind the intestate, who was no party to the suit. If the sentence of a foreign court of admiralty had condemned this slave, as a prize to the British, we should have regarded it, though Pierce had been no party; because it would not have been in his power to have become a party. So, if in this case, Pierce had put in his claim, and it had been decided against him, that decision, whilst unre-versed, would have bound this, and all other courts. But the slave in question, was libelled, and condemned, by the name of Jack Robinson, instead of that, by which he was always called; and therefore Pierce could not be presumed to have had notice, that his interest was involved in the suit, so as to enable him to assert his right.

The first resolution of Congress, which passed on the 2Sth of November 1775, au-thorises vessels commissioned by that body, to capture and make prizes of all armed vessels, belonging to the enemy, employed in the war, and of all transports carrying troops, warlike, or naval stores, or provisions, and directs the distribution of the prizes.

The next resolution which passed on the 23d of March 1776, extends the right of capture to all vessels, and to all goods, wares and merchandize, belonging to any inhabitant of Great Britain: but slaves are not mentioned. Whether they should be considered as goods &c. within the meaning of this resolution or whether they are to be classed with lands, or ships and cargoes, so as by the rules of postliminium, to require the sentence Jof a Court of Admiralty to change the property, or whether they are to be considered in the light of moveables, and the propertjT in them changed by capture, without condemnation r are questions, which the court think unnecessary to consider, since it is not stated, that the slave belonged to an inhabitant of Great Britain, so as to bring the case within the resolution of Congress: neither is it stated, that he was taken in war

by the enemy, and ^recaptured, so as to bring it within the exception in the act of Assembly passed in 1782. It appears, that he was the property of Pierce, and being such, ran off, and was found on board an enemy’s vessel, where no person claimed a right to him.

The sale therefore, in the present instance, could not divest the right of the original proprietor, however inconvenient this doctrine might prove to purchasers— for though equitable rights may, in favor of fair bona fide purchasers, for valuable consideration, and without notice, be lost by a sale, legal rights never can, unless there be fraud, as in the case of a prior mortgagee standing by, whilst another is throwing away his money by purchasing the mortgaged premises, without giving notice of his prior incumbrance — in cases of legal rights, the principle of caveat emptor properly applies.

Judgment affirmed.  