
    John Bates, Sheriff, vs. Nathaniel Gest.
    The defendant gave the plaintiff, who was sheriff, a receipt for a negro slave levied on, to deliver the said slave to the sheriff on a particular day, or to pay §500. The court held, that the defendant might, to an action brought on such receipt for not delivering the slave shew that the executions under which the slave was levied on, were satisfied, and that the slave had been bought from the defendant in such executions, and that he had delivered the slave to such purchaser, or that he might shew that the slave was transferred to him, or give any other evidence to identify himself with the purchaser.
    The sheriff by taking property in execution acquires a mere qualified property to enable him to execute the trust reposed in him; and whenever the object of the levy is answered or the execution is otherwise paid, the right of properly in him ceases, and reverts to the original owner or to those claiming under him.
    Tried before his honour judge Richardson, at Union, Spring term, 182S.
    
      This was an action of assumpsit brought by the plaintiff, on a paper o/ which the following is a copy. “ Received of John Bates, sheriff of Union District, one negro girl, levied on as the prop .rty of John Rochell (but said to belong to David Spivy) levied at the suit of Fanny Lee and others, which said negro girl I promise to deliver to said Bates, the first sale day in January next, or pay five hundred dollars.
    (November 19th, 1823.” Nathaniel Gest.”
    
    The defendant pleaded the general issue. And secondly, that the executions under which the levies were made, were all satisfied.
    The defendant offered to prove the following facts.
    That on the 19th of November, 1822, John Rochell bargained and sold the above negro to Samuel Spivy, for a valuable consideration; Before that day, several executions had issued against Rochell and were levied on this negro, by D. A. Mitchell the former sheriff of Union District. The present plaintiff afterwards got possession of this négro, under Mitchell’s levy. Gest then gave the above paper to release the negro; and then satisfied every execution, the date of which was previous to tire day of sale by Rochell to Spivy subsequently to the 19th of November, 1822, among many other executions issued against Rochell which were unsatisfied. That Rochell being largely in debt, had mortgaged both land and negroes to a large amount, which was older than'any execution. The judgment creditors filed their bill in equity, for the purpose of having all the property of Ro-chell sold, on a credit. The court decreed and ordered the commissioner to sell the mortgaged property, and after paying off the mortgage, then to pay off the executions according to their legal priority. This was done, and sales sufficient were made by the commissioner, the application of which would have settled all the executions levied on this negro, or which were previous to the date of sale to Spivy. His honour refused the evidence offered, and held that defendant was concita dedby his receipt, and even if the facts were as alleged by defendant, yet, plaintiff was entitled to recover.
    The jury under the charge of his honour,'found a verdict for plaintiff, for $,‘500, with interest.
    Defendant appealed on the following grounds:
    1. Because the levy being made by Mitchell could vest no property in Bates, the present sheriff.
    2. Because if any property vested in Bates, under Mitchell’s levj', it became divested as soon as the execution under which the levy was made was satisfied.
    3. Because his honour charged the jury that nothing ■could excuse defendant but the delivery of the negro, or payment ofthe $500.
    
    4. Because the court charged the jury, that all the executions against Rochell bound this negro, and that the satisfaction of the executions older than the bill of sale, did not discharge the lien, and therefore defendant was liable.
   Nott, J.

The sheriff by taking property in execution becomes, in contemplation of law, the legal owner. But he acquires a mere qualified property, to execute the trust reposed in him by virtue of his office. Whenever, therefore, the object of the levy is answered, the right of property ceases. If the owner of the property pays the money, the title of the sheriff is at an end, and it reverts to its former proprietor. If therefore, Rochell had been the defendant, there could be no doubt that he might have set up this defence, if there was no younger executions. But Rochell had sold to Spivy; he therefore must be considered as standing precisely in the situation in which Rochell stood at the time of that transfer. Now, I apprehend there can be no doubt, that a man whose property is under execution, may sell or mortgage that property subject to such lien, for the purpose of paying off the debt; and that incumbrance being removed, the purchaser, or mortgagee has a good title. And 1 presume it admits of as little doubt, that it cannot be disturbed in the hands of such purchaser, by any subsequent executions. Spivy therefore being a bona fide purchase?, Was entitled to the property, after the prior incumbrances were removed. His right could not be effected by any subsequent executions. I think, therefore, that the presiding judge erred in the opinion which he expressed, that the junior executions were a lien upon the property.

Williams for the motion.

O’Neal and Sims contra.

It is said that the present defendant is a stranger to Spivv, and therefore he cannot set up this defence, but must comply with his contract with the sheriff. That is true, but he may shew that he has delivered the property to Spivy, or that Spivy has transferred it to him, or he may give any other evidence by which he can identify himself with Spivy for the purposes of this defence, It is said no such evidence was given. But it was precluded by the opinion expressed by the court that it would have been unavailing. It would not only have been disrespectful to the court but a perfectly nugatory' act to have offered the evidence, until the legal question was disposed of.

I am of opinion, therefore, that a new'trial ought to be granted. 
      
      
        ) In Hull vs. Piekersgill, 1 Brod. & Bing. 282, the court of Common Pleas in England seems to have gone farther. There “ the house of the plaintiff, an uncertificated bankrupt, was broken open, and effects acquired by him subsequently to his bankruptcy taken by the defendants, who had become his creditors since the bankruptcy, and did not know who were the assignees under the bankruptcy. The bankrupt having sued the defendants in tresspass, they obtained, after a rule for plea, a surrender of the assignees’ interest in the effects seized: Held, that this was a ratification of the seizure, and that the plaintiff could not recover,” under the maxim, omnia ratihabitio retrotrahitur, et mandato asejuifiarentur. But it was said by Park J. that the rule was applicable to torts only, and not to contracts. (See Hagedoon vs. Oliverson, 2 M. & S. 485, which was a case of a contract, also a ease in the Year Books, 7 Hen. 4, 35.) “ The rule of law, said C. J. Dallas, in the above case of Hull vs. Piekersgill, is, that he, for whom a trespass is committed, is no tres*-passer, unless he agrees to the trespass; but if he afterwards agree to it, his subsequent assent has relation back, and is equivalent to a command, according to the well established maxim omnis ratihabitio, See.” I do not know that the doctrine oí ratihabitio is exactly applicable to the principle decided in the text, but there can be mo doubt that it has been taken from the civil law, though adopted in England as early as Henry IV. and in the civil law it has always been applied to contracts. From the civil law writers, I collected the following facts.
      
        Ratahabitio or ratahibitio, a legal confirmation of an act originally illegal; as where the consent of a father is necessary to the validity of a marriage: or the assent of a guardian,to the contract of a minor. The doctrine is treated by Huber in the third volume of his Rralectiones Juris, page 1170, Deritu nufitiarum. The general rule is that wherever a beneficial privilege is given by law to any one to assent or not to assent to the acts of others, he may at any time wave this privilege, and confirm as from the beginning, an act originally illegal and void. Such a confirmation has relation back to the inception of the act. Thus a marriage void for want of parental assent under the civil law, bastardizes the issue; but if that assent be subsequently-given, the issue are thereby legitimatized. Quicquid est nullum, Jit ab origine validum, si fiostea acquiescat is, in cujus gratiam lex nullitatem statuit. This rule includes a great part of the doctrine of Relation of the English law. .,See the head de JVufitiis in the Digest and the Code.
      
     