
    William Rice vs. Parham and High.
    Where fire-arms are taken from a negro under the Act of 1819, and the owner, with a knowledge of the proceedings, does not oppose the condemnation by the magistrate, he cannot maintain trover against those who seize them and caused them to be condemned.
    BEFORE BUTLER, J., AT UNION, SPRING TERM, 1838.
    This was an action of trover brought to recover the value of a gun, taken by the defendants under the following circumstances. They were patrolling, and found it in the possession of the plaintiff’s negro, who was living on a plantation without any white person residing thereon. They seized it, and carried it to a neighboring justice, Jeffrey Palmer, for condemnation. Palmer testified, that the defendants brought the gun to him, and made oath that the plaintiff’s negroes bad it on a plantation, not being under the immediate control of any white person, and that they annoyed the neighborhood by shooting it on Sundays — that they bad taken the gun, believing it to be liable to seizure and condemnation. The magistrate took it into his possession, and gave notice to the plaintiff, that the gun would be condemned, unless it should be shown that it was not liable to condemnation. The plaintiff neglected to appear and resist the proceedings, and it was accordingly condemned. The defendants took the gun and sold it.
    A witness (the son of the plaintiff) testified that be bad placed the gun in the possession of the negro from whom it was taken, for the protection of the plantation; and bad given him a written permission to use it for that purpose. That there were seven negroes on the plantation, and that it was not far from another place .of the plaintiff’s under the care of a white man. He also proved that be demanded the gun after it was sold, and the defendants refused to deliver it up. The defendant’s counsel moved for a non-suit, which the plaintiff took with leave to move the Court of appeals to set it aside. The presiding Judge stated in his report of the case, that the ground on which he granted the non-suit was, that the plaintiff should have appeared before the magistrate to contest the condemnation — that whether the gun was liable to condemnation or not, was a question that the magistrate was competent to try; and if he had condemned it contrary to law, or with out authority to do so, the plaintiff could have applied for a writ of prohibition.
    The plaintiff moved to set aside the non-suit, on the ground that the presiding Judge erred in deciding that the plaintiff had lost his rights by not appearing before the magistrate and showing there was no forfeiture; and also upon the ground that the proceedings before the magistrate were illegal and did not change the right of property.
    
      Herdon, for the motion.
   Curia, per Richardson, J.

This Court. concurs in the opinion and decision of the presiding Judge. The gun was seized by the defendants, by virtue of the Act of 1819, p. 31. The negro exhibited no ticket or permit; and no white man lived on the plantation. In such cases, the Act authorizes any white man to seize the fire-arms, and convert them to his own use. The Act proceeds, then, to direct how the fire-arms shall be condemned. “But before the property shall be vested,” &c., &c., “ such persons shall,” &c., “ go before the next justice,” &c., &c., “and make oath of the manner of taking,” &c. The Act then directs, that the justice will give forty-eight hours’ notice to the owner, &c., of the fire-arms, to show cause why they should not be condemned; and authorizes the justice, to declare them forfeited, “and the property lawfully vested in the person who seized the same,” &c. The proceedings before the justice appear to have been regular; fair notice was given to the owner, and the gun forfeited upon default of his appearing and showing any cause to the contrary. The gun was afterwards sold to strangers. The course pursued, and the forfeiture declared, appear to have been strictly within the provisions of the Act; and the -defendants must be upheld in their title to the gun, which the law has transferred from the former owner to them, under this necessary police enactment.  