Mar. 1794. horse from Hughes, who had him, and sells to Gilesand now amongst other things it was insisted for Giles, that Hughes ought not to have a verdict against him and recover damages, for that a recovery by Hughes, who was not the proprietor, would be no bar to A, to hinder him from bringing his action at a future day against Giles, and recovering also. The books indeed say, that he who has a special property may recover in this species of action, as in the case of a carrier, bailee or finder, a Sheriff who has seized goods in execution, or the like; but the reason is, that those persons are hable over for the goods to a third person, and they are allowed this action, in order that they may have it in their power (26) to indemnify themselves, by recovering against the wrong

doer, that value which they have to pay to the owner;
and it is because they are entitled to recover, that they
are said to have a special property; but surely if the
carrier, bailee, &c. voluntarily sell or dispose of the pro-
perty, they cannot afterwards maintain an action for it,
they are stopped by their own act; but yet their sale
conveys no property, because they had none themselves ;
and in order to convey an interest or property by sale,
the vendor must have the general or absolute property
a special property only enables him to sue a wrong doer,
not to convey the property; because in so doing he com-
mits a breach of trust, unless where he has the property
for the purpose of selling it, as in the case of the Sheriff,
and then what he does is only good by virtue of his au-
thority. That the conveyance of such persons in genc-
ral conveys no property, is proved by this, that if the
carrier, bailee or finder sells it, his vendre is liable to
the action of the owner; but in this case, B who sold
both to Hughes and Brem, though he is liable to A's ac-
tion, yet he cannot recover against either of them; be-
cause as to him they are neither of them wrong doers;
and surely the Plaintiff Hughes cannot be said to have a
special property, that comes only by the delegation of
the owner, and potestas delegata non potest delegari This
is not in the circumstances of a carrier, bailee, &c. or of
any of those persons who are liable over by means of a
trust; and as there is so such liability over in his case,
there is no reason why the law should give him an ac-
tion to recover against the Defendant. If he should not
recover, he can never be charged by A: what reason
then is there to say he ought to recover, when he has not

the general property, and when there is no necessity that Apr. 1794. he should be deemed to have a special one in order to his own indemnification? But per WILLIAMS Judg, notwithstanding these arguments, the Plaintiff has a right to recovery. Hughes had purchased the property that B had, and was in possession; and is to be considered as having a special property, until a befter could be shewn; and no one but the right owner could interfere with his possession, or lawfully deprive him of it; this is an advantage which should not be taken from him by a third person—so the Plaintiff had a verdict and judg

ment.

NOTE. The case of Laspeyre v. McFarland, N. C. Term. Rep. 187, decides that trover cannot be maintained on the possession of a chartel, where it appears that the legal title is in another, and that he Paintiff as only a trust. But see the cases on this subjec: collected in 2 Sand. 47. a. note 1. The Court in Luspeyre v. McFarland, seem to intimate that trespass would have lain in that case, and authorities are cited in Sanders to show that wherever trespass will lie for the wrongful raking of goods, trover will also lie; for one may qualify but not increase a tort.

15445

HILLSBOROUGH, APRIL TERM, 1794.

Elwick's Ex'rs. v. Rush.

( 28 ) Demand is necessary to sustain the action of detinue, and it must be made by the claimant himself, or by some person for him, and so made known at the time of the demand. Said arguendo by the Judge, that the statute of limitations begins to run from the time, that the Plaintiff kew where the negroes were, and that the Defendant claimed them as his own, although no demand had been. made.

Detinue. Plaintiff by one Tally, proved that Barton, who was a legatee, went with him to Rush, and informed Rush that the negroes mentioned in the declaration were of the estate of Elwick; that he, Barton, was a legatee, or heir of that estate; and that Col. Taylor was execu tor and demanded the negroes.- Et per Judge WILLIAMS, a demand is necessary to entitle to the action, and it must be made by the Plaintiff, or by some one by his authority; here he did not inform the Defendant of his authority at the time of making the demand, or say that he demanded in the name of the Plaintiff; therefore it Was not a good demand, and the Plaintiff was nonsuited. NOTE, In the arguing of this case, Judge WILLIAMS said, the act of limitations would run in detinue, without

Apr. 1794 a demand, if the Plaintiff knew where the negroes were; and that they were claimed by Defendant as his own, and did not bring suit within the time prescribed in the act: but this be said arguendo only. See the case of Berry's adm'rs. v. Pullam.

NOTE. The opinion of the Judge on the first point of this case is doubted of by Haywood in his note to Lewis v. Williams, post 150, and overruled in an anonymous case, Hay. 136, and Shepard's adm'rs. v. Edwards, Ibid. 186.

Waller v. Broddie.

Certiorari. The Plaintiff after obtaining the certiorari to remove this cause from the Court below, into which it had come by appeal from the judgment of a Justice of the Peace, had removed into South-Carolina; and now upon motion to the Court for that purpose, Judge WILLIAMS upon the bench, it was ordered, that unless by the next term or before, the Plaintiff put in sureties for prosecuting this cause, and for paying costs in case he fail therein, that this cause shall be dismissed. The Judge said upon this occasion, that the act of 1787, frequently operated with hardship, and peculiarly so, in the case of poor persons who had suffered injuries and were unable to give security; and in some cases, the Court since that act, had permitted such persons to sue in forma pauperis, without any such security; but as the act was passed by the Legislature, the Court was bound by it. That the word writ, in the act, extended to the case of a certiorari, as well as to cases of bills in equity; in which case it had been decided, that such security should be given.

NOTE. The act of 1810, Rev. ch. 793, requires security to be taken in the same manner as in the case of appeals, and I believe that the securities in such cases are considered in the same light, as sureties to an appeal bond, and where the judgment of the Court below is affirmed in the Superior Court, judgment may be entered up instanter against the Plaintiff in the certiorari and his securities.

State v.

The act of 1793, authorising the Attorney-General to take judgment against the receivers of public moneys, by motion, and that their delinquencies should be sufficient notice to them, was declared to be unconstitutional and void by WILLIAMS, Judge, but was afterwards allowed by McCAT and ASHE Judges. ASHE hesitating at first.

At the last session of the General Assembly, it was enacted that judgments might be obtained by the Attor(29) ney-General against receivers of public money, by mo

tion; and that their delinquencies should be sufficient no- Apr. 1794. tice to them that they were to be proceeded against; and upon this act the Attorney-General now moved for judg ment against several, and produced the act to show how he was authorised so to do.

But Judge WILLIAMS stopped him, saying he could not permit judgments to be taken in that manner. That he conceived the act to be unconstitutional, it was tocondemn a man unheard. The 12th article of the Bill of Rights says, "No freeman ought to be taken, imprisoned or disseised of his freehold, liberties or property, &c. but by the law of the land ;" and these words mean, according to the course of the common law; which always required the party to be cited, and to have a day in Court upon which he might appear and defend himself. The 14th section declares, that the ancient mode of trial by Jury, is one of the best securities of the rights of the people, and ought to remain sacred and inviolable. The ancient mode of trial by jury was, that after the Defendant was cited, and had pleaded, and the other party had denied his plea, or some part of it, then the point in controversy was submitted to the decision of a jury; but here, though a jury may be sworn, what will it be upon? It will be upon a default taken against the party who does not appear and plead, because he has no knowledge that any proceedings are intended to be had against him and so in truth it is not a trial by jury according to the ancient mode-the Defendant has no opportunity of making any defensive allegations which may be submiited to the decision of a jury; but the jury here are merely to pronounce what is the sum to be recovered, and in this they are to be governed by the report of the Comptroller, which is made evidence against the Defendant by another act of Assembly; so that in reality the jury have nothing to determine on-it is mere form for the sake of which they are to be impannelled— such a trial is a mere farce. I think the act unconstitutional, and I cannot, as at present advised, give my assent to its being carried into effect-the Judges of the land are a branch of the government, and are to admin- ister the constitutional laws, not such as are repugnant to the constitution; it is their duty to resist an unconstitutional act. In fact, such an act made by the General Assembly, who are deputed only to make laws in Conformity to the constitution, and within the limits it

Apr. 1794. ¡rescribes, is not any law at all. Whenever the Assembly exceeds the limits of the constitution, they act with(30) out authority, and then their acts are no more binding than the acts of any other assembled body. Suppose when met together, they should pass an act to continue the Assembly for two years-the constitution says it shall continue but for one-and suppose in the second year they should pass an act-would the Judges be bound to effectuate it? Surely not. No more are they bound to regard an act not made agreeable to the constitution. I am alone on the bench-I am sorry to be obliged to prevent the execution of an act which the Legislature thought necessary to be passed, and no doubt might be of public utility-but what end is an equivalent for a precedent so dangerous as that where the constitution is disregarded by the Legislature, and that disregard sanctioned by the Judiciary? Where then is the safety of the people, or the freedom which the constitution meant to secure? One precedent begets another, one breach will quickly be succeeded by another, and thus the giving way in the first instance to what seems to be a case of public convenience, in fact prepares the way for the total overthrow of the constitution-that surest palladium of our rights. I cannot consent to it—but the Attorney General, if he pleases, may again move the subject when we have reflected a little more upon it.

Next day at the sitting of the Court, Haywood, the Attorney-General, moved the subject again, as follows: The clauses of the constitution that are objected to the validity of this act, are declarations the people thought proper to make of their rights; not against a power they supposed their own representatives might usurp, but against oppression and usurpation in general. The second clause for instance, could not be intended as a restraint upon the Legislature; it could not be supposed the Legislature would ever attempt to oppose the right of the people to regulate their internal government; it was intended to assert the right of the people against the power of the British King and Parliament, and against all other foreign powers, who hereafter might claim a right under any pretence whatsoever, of interfering with the affairs of this government; and to serve as a standing and perpetual memento to posterity, that the least intermeddling by any foreign power with the internal policy of this government, is au invasion of their privi