
    James Nations et al. vs. Nancy A. Alvis, by her next friend, Zacharias C. Alvis.
    The writ of habeas corpus, allowed by statute for the recovery of the possession of a slave, when, taken or seduced out of the possession of the master, overseer, or owner, by force, stratagem, or fraud, and unlawfully detained in the possession of another, applies only in cases where the circumstances which warrant the writ have occurred within the jurisdiction of our own state.
    Where negroes were taken out of the possession of the owner, by force, stratagem, or fraud, in the state of Tennessee, and brought into this state, and there, detained from the owner, he is not entitled to the writ of habeas corpus to recover their possession.
    The law of comity, except in cases of contracts, does not extend the laws of one state beyond the jurisdiction of that state.
    In error to the circuit court of Yalabusha county. Hon. Benjamín F. Caruthers, judge.
    Nancy Ann Alvis, a minor, under the age of eighteen years, residing in the county of Shelby, in the state of Tennessee, by her next friend, Zacharias C. Alvis, filed a petition before the Hon. B. F. Caruthers, judge of the second judicial district of the state, setting forth, that on the 4th of February, A. D. 1843, at night, James Nations and Joseph Nations, by stratagem, seduced certain slaves out of the petitioner’s possession, and secretly conveyed them into the county of Yalabusha, in this state; that they still had the slaves in possession, unlawfully detaining them ;• and that she was apprehensive they would remove them from the state; and that they were her property.
    A writ of habeas corpus was prayed for under the statute, and granted by the judge, returnable before him in Carroll county, to the circuit court of that county. At the April term, 1843, of the court, the venue was ehanged to Yalabusha county, where the defendants filed their answer, in which they denied the seduction by stratagem of the slaves from the custody of the petitioner. The answer admitted that James Nations was in possession of the slaves, which he claimed as his own by virtue of a mortgage from Zacharias C. Alvis, which he had upon them. That while in his possession, on the 7th of February, 1843, the sheriff of Yalabusha county had levied several executions upon them, as the property of Zacharias C. Alvis; whereupon he had claimed them, and given bond, with security, according to law, and the issue to try the right of property had been regularly filed in the Yalabusha circuit court. That these facts were well known to Zacharias C. Alvis, who was prosecuting the claim of Nancy A. Alvis, well knowing that she had no valid right, either at law or in equity, to the negroes, and with the intention to defrand the defendants and other creditors. The answer also insisted upon a previous adjudication, on a similar writ, before Judge Howrey, as a bar to the present writ.
    The writ came on for trial in May, and the circuit judge decided that the slaves were the property of Nancy Ann Alvis, had been seduced by stratagem out of her poseession, and were illegally detained.by the Nations,' and ordered the possession of them to be forthwith restored to the petitioner. To which decision the defendants excepted, and from their bill of exceptions the following proof appears to have been made to the court.
    A mortgage upon the.slaves, given by Z. Alvis to James Nations, in December, 1840, to secure four hundred dollars and interest.
    Various executions for different sums, in favor of numerous persons, against Zacharias C. Alvis, levied on the negroes in controversy; together with the affidavit and bond to try the right of property given by James Nations.
    The record of the writ issued by Judge Howry was also read.
    The petitioner also read in evidence a bill of sale to a portion of the negroes in controversy, from. James Nations to T. M. Alvis, dated January 23, 1838; and proved that when Nations made the bill, he delivered the negroes to the bargainee, who took them into possession,1 and retained them until February, 1839, when he made a gift of them to his sister, the petitioner, who was the daughter of Zacharias C. Alvis. That T. M. Alvis, from the time he bought, until he gave the negroes to his sister, lived separate from his father, and had sole and exclusive control of the negroes in the bill of sale. That, at the time of the gift, Nancy Ann Alvis was about eleven years old, living with her father, with'whom she still resided. That her father moved from Yalabusha county to Shelby county, Tennessee, in the year 1840, taking with him his daughter and her negroes, where they lived until February, 1843, on the fourth day of which month James and Joseph Nations came, and by stratagem seduced the negroes out of their possession by night, and run .them off to Mississippi. That pursuit being made for the negroes, they were overtaken in the state of Mississippi, in Po-nola county, in the possession of the Nations, who refused to give them up, and threatened violence if they were taken out of their possession. That the Nations brought the negroes to Yalabusha county, where they still had them in custody, refusing to deliver them to the plaintiff or her next friend.
    It was also in proof that Zacharias C. Alvis had never made any claim to the negroes in his own right.
    The following errors were assigned :
    1. The facts set forth in the petition and proved, do not give the court jurisdiction.
    2. A prior writ of habeas corpus had been sued out.
    3. The plaintiff, James Nations, held the negroes in custody, as bailee of the sheriff, and as claimant of ,the property.
    
      Waul, for plaintiffs in error.
    The law, under which this habeas corpus was sued out, is repugnant to our free institutions, in derogation of the common law, violates the right of trial by jury, incites to perjury, and gives to crime and fraud a reward, without any relief or remedy adequate to the injury inflicted, and that when the action of re-plevin, or a bill for the specific delivery of the negroes will afford as full and ample relief. A law exhibiting so many odious features not only will obtain no indulgence, but the court will scan narrowly every case that is pretended to be brought up within its provisions, and restrain within the narrowest limit its operations, that, like all other summary proceedings, the party applying for the writ will be recpúred to comply with all the provisions of the law, and make out a case covered by its letter and spirit.
    The first objection we make is, that the writ only applies to cases originating within the state, and where the party injured also is a resident, and depend upon that principle of national law.
    That all summary proceedings are, in their nature, intra-territorial, and have no effect on persons or actions without the state, unless they are specially named. Story on Con. of Laws, ch. 2, sec. 20 and 30.
    The law was only intended to apply to cases where there was no other adequate remedy, and the right of the petitioner was clear and undisputed ; for it could never have been the intention of the law to have made a contest for the right of property, or that questions of fact and fraud should be tried by the judge.
    Here we conceive we have the better legal right; but whether we have or not, the negroes were in the custody of the law, and, until the question of title was decided, they could not be taken from its care. By the levy, the property was changed, and, until it is re-transferred by the judgment of the court, it must remain subject to the execution, and the rights of the plaintiffs in execution to have their jJebts levied out of the property, cannot be disposed of in a proceeding to which they are not parties; and it would be no answer to a claimant under an execution to say, that a superior right took the property from his possession.
    The slaves could not have been taken from the sheriff, but in the manner required by law. The petitioner failed to make her claim; the plaintiff in error made his, and he became the bailee of the sheriff, the custoders of the law, and has a right superior to any other.
    Should the property be made liable to the execution, as between the plaintiffs in execution and the claimant, the petitioner has her remedy against them, or the specific property. Should the issue be decided for the claimant, she might then contest the right of property with him; but the law will permit no conflicting claim to interpose, until the pending contest is decided. Hagan v. Lucas, 10 Peters, 400.
    
      Gay, for defendant in error.
    The first error relied on to reverse the judgment of the court below, is, that the taking was in the state of Tennessee, and in that case the defendant in error was not entitled to the remedy by habeas corpus. The words of the act are general and comprehensive, and unless restrained by the operation of some general principle, would cover the case made out by defendant in error. The act is not in the nature of a penal statute, but merely creates a new remedial writ, for the redress of a civil injury. The tortious taking is the injury complained of; and if the same had taken place in a foreign state the court would extend relief by the proper remedial writ. It is a novel idea that our courts will not afford relief for civil injuries done beyond its limits.
    It might as well be contended that the ordinary remedy by capias ad respondendum should be granted only in cases of contracts made or torts committed within the limits and jurisdiction of the state. How. & Hutch. 665.
    The second error relied on is, that the plaintiffs in error ought not to have been compelled to surrender the slaves, because they had given a claimant’s bond under the statute for the trial of the right of property. The plaintiffs in error were not compelled to give the claimant’s bond. If they had title to the property levied on, they could have resorted to their common law remedies against the sheriff. The act was voluntary upon their part; and if by their tortious and fraudulent taking in the first instance, and the subsequent levy by the sheriff, they have rendered themselves liable to them as well as the defendant in error, that consideration cannot in any manner affect the rights of the defendant in'error. Her right of action accrued upon their unlawful tortious taking possession of the slaves in controversy, and could not be divested by any act done by a stranger..
    
      If the plaintiffs in error could be held entitled to hold possession of the property, it must be upon the ground that they are the bailees of the sheriff, and that their possession is his possession. This -view will be taken in argument, and an effort will be made to sustain it by authority. Is it true that under a claimant’s bond the claimant stands in the attitude of the sheriff’s bailee ? He surely does not. The bond is not given to him. The claim asserted is adverse to his claim. The judgment, when recovered, is not in favor of the sheriff; and being by our statute assimilated to the action of detinue, it is the recovery of specific chattels of the claimant by the execution creditor. In no light, therefore, can the claimant be regarded as the bailee of the sheriff.
    But admit, for the sake of argument, that the claimant stood in the attitude of the sheriff’s bailee, how would that affect the case ? If he be the bailee of the sheriff, he must, having but the sheriff’s title, show that the sheriff had the right to seize the goods. If the sheriff have no right to seize the goods, he is a trespasser, and his bailee could no more defend himself against the real owner than could the sheriff himself. If the facts, disclosed by the bill of exceptions could be set up in bar of the writ it could only be done by showing that the sheriff had the right to levy on the slaves, and this was not attempted to be done. For it would be a singular position to assume that the first trespass of the plaintiff in error was legalized by the trespass of the sheriff. That the plaintiffs in error are entitled to hold that property by virtue of the trespass of another, which they could not hold by virtue of their own.
    If the sheriff seize the goods of a stranger, on execution, he is a trespasser. 3 Bacon’s Abridg. 387; 4 Term Rep. 651. If the plaintiffs in error took upon themselves the character of bailees of the sheriff they did so at their peril, and it is no de-fence to an action brought by the rightful owner, against them, that they are the bailees of the sheriff, unless they show the right of the sheriff to take the goods. Here, then, regarding the plaintiffs in error as the bailees of the sheriff, they had the right, upon the trial, to show his right to levy on and seize the slaves; not having done so, and the defendant in error, having shown property and possession in herself, the court rightfully adjudged her the possession.
    
      A. C. Baine, for plaintiffs in error.
    1. I think i't well worthy of serious consideration, whether a citizen of Tennessee can come here and claim the benefit of our statute for a wrong done him there. The seducing the slaves out of his possession in Tennessee, may have been no wrong at all, or one of the highest magnitude, swallowing up all remedies in their character civil in that state. But, certainly, our statute never contemplated providing a remedy for the citizens of Tennessee, for wrong and violations of the laws of that state. By it none of our citizens are deprived of any right, nor does any injury result to any of them. No part of the policy, object, or spirit of the law, is violated by an offence, granting it one, such as this is charged to be, done in Shelby county, Tennessee.
    
      2. But even if there were proof of actual possession in the plaintiff, and a present right of possession, both of which are necessary, and also proof of the seduction and illegal detention, both of which also are necessary, still it was manifest, from the uncontradicted return of the defendants, that the property, at the time of suing out the writ and the judgment, was, with the knowledge of the plaintiff’s next friend, in the custody of the law, and therefore not liable to this or any other process, conflicting with such custody. See 10 Peters’ R. 400, where it is settled that the custody of the claimant is the custody of the sheriff, and cannot be interfered with.
    3. Again. Is not this habeas corpus law repealed by the late law of replevin ? Is it indeed constitutional, if not repealed 1 Can a man be divested of property he claims to own, by a person claiming adversely, without a trial by jury, and in a summary manner by, not a court, but a judge of a court? If open, opposing claims of property, of this character, can be thus summarily disposed of, why not any other property, or right of property, or possession of it, be disposed of in a similar way, and thus the trial by a jury, in open court, be virtually and practically abolished? I see no reason why it may not be done, if this law can be sustained.
   Mr. Justice Thachee

delivered the opinion of the court.

This is a writ of error to the judgment of a judge of the circuit court, pronounced upon the hearing of matters by virtue of the writ of habeas corpus ad subjiciendum, 6cc. The writ was sued out under the statute H. & H. 665, § 11, which provides that, if any slave for life shall be taken or seduced out of the possession -of the master, owner or overseer of such slave by force, stratagem, or fraud, and unlawfully detained in the possession of any other person, a summary remedy for the recovery of such slave into the possession of such master, owner or overseer shall be allowed, pursuant to the rules governing the general writ of habeas corpus in this state.

Upon the hearing, it appeared in evidence that the asportation of the slaves by stratagem, occurred in the state of Tennessee, from whence they were brought into this state.

The right to this prompt, summary and eifectual remedy for the recovery of the possession of slaves can be derived exclusively from the circumstance of their having been taken or seduced from legal possession by force, stratagem, or fraud, and thereafter unlawfully detained in the possession of another. The remedy, having been given by statute, can apply only to cases where the circumstances that warrant it have occurred within the jurisdiction of our own state. Although it might be made to appear that a similar remedy exists in the state of Tennessee, that fact would not give authority for the remedy here in a case like the present. From the sovereignty of' each state, it results that the laws of one state, (excepting the law relative to contracts, which, by courtesy, or for convenience, is allowed to form an apparent exception,) cannot, by any inherent authority, claim respect beyond the jurisdiction of that state which eliacts them. Blanchard v. Russell, 13 Mass. 1. The facts disclosed by the evidence in this case show, conclusively, that the petitioner below was not entitled to the remedy under this statute.

Judgment of the court below reversed, and the slaves directed to be restored to the possession of the plaintiff in error.  