
    The State against Thackam and Mayson.
    A negro is one of the persons who, in contemplation of law, may, with •white men, commit a riot. A sheriff must not make levies at midnight, or improper hours, or he will be deemed a trespasser; unless under very special circumstances.
    A sheriff may justify breaking open get peaceable doors of inner rooms, &c. to reduce property into possession, if he ean possession ay admission into the outer dooy. ’
    THE defendants were indicted for a riot, in entering into the plantation of Colonel Gervais, at twelve o’clock at night, in January last, and breaking open an inner room in a kitchen, and taking away in a tumultuous manner, sundry negroes, &c. It appeared in evidence, that they took a negro man with them, who was armed as well as the defendant, and that they were the only persons present when this outrage was committed.
    The defendants justified under an execution, which Thackam, who was a deputy-sheriff, had in -his possession, to seize the property of one Purvis, of Ninety-six district 5 and alleged, that the negroes in question, were the property of Purvis, and had been bound by a previous levy, at the suit of Andrew Johnston. Gervais had taken them by virtue of a mortgage ; but this mortgage was (as was conceded) subsequent to the lodging of the first execution in the sheriff’s office.
    After the evidence for the prosecution was finished, which fully proved the fact of the defendants’ going on the plantation at the hour mentioned, with the negro armed, and taking away the negroes, &c.
    
      Harper and Holmes took an exception to the indictment, and contended, that the first count in it was not supported. It was necessary, they urged, that three persons should be present at the commission of a riot; and that a negro slave was not in point of law, such a person as could be capable of committing this offence, being under the direction and control of his master, who might take upon himself the offence. And as not more than two white men were present, it could at most, be considered only as a trespass, (even supposing they were not justifiable in going on the plantation, at the time and in the manner proved,) and not a. riot.
    
      The Court, (present Burke, J. Waties, J. and Bay, J.) after hearing the attorney-general in reply, were clearly of opinion, that a negro was, in contemplation of laxv, such a person as was capable of committing a riot, in conjunction with white men. That it would be highly improper to suffer a white man committing an enormity, to screen himself under pretext that one of the party was a negro. Besides, it is evident, that a negro was one who was capable of committing' an injury. Those were the persons the law had in view, in cases of riots 5 and that it was not necessary, men should be possessed of civil rights, to make them amenable to justice for these offences.
    The counsel then contended, that it was a lawful act the defendants were engaged in, and that they had a right to enter the plantation of Gervais to seize the negroes, at any time they thought proper. That negroes being a species of property, that had a volition or power of secreting them» selves when they thought proper, or whenever their' owners or masters gave them directions for that purpose, it might often happen that no levy or seizure could be made, unless sheriffs’ officers had a power of surprising or seizing them at night. That therefore, both the law and policy of the thing, well justified the exercise of such a power, even in the dead of night.
    Pringle, Attorney-General, replied,
    that to give a legal sanction to the exercise of such a right, would put it in the power of persons, under the colour of legal authority, to disturb the peace and tranquillity of families, at improper hours ; which would necessarily call forth their resentments, and create tumult, and perhaps bloodshed. That the law would by no means warrant a sheriff in making these seizures in the dead of night; for they might and ought to be made in the day time, and at the usual and proper hours.
   The Court

were of opinion, that although the act of the sheriff’s officer, in going to make the levy or seizure of the property, was a lawful act; yet such levy or seizure ought to have been made at the usual and customary hours of doing business, and not at midnight, when the family had all been at rest. That this therefore being the case, akhough it would háve been lawful at proper hours, yet being done at the time, and in the manner proved, it was certainly an outrage upon Colonel Gervais’s family, and as such, might well be considered as a riot. The court, however, in this opinion, did not wish it to be understood, that it was in no case legal and proper for a sheriff to seize negroes at night; for cases might happen, where there would be a failure of justice, if it were not permitted.

The Court were further of opinion, that if a sheriff can get peaceably into the outer door of a house, he may break open inner doors of rooms, or other places, to reduce the property into his possession.

• The jury found the defendants guilty ; but as it appeared they thought they were on a lawful errand, and had no intention to commit a riot, the court fined them five shillings each.  