#### Robertson v. Stuart.

A slave wrongfully taken out of the possession of A, and sold to B, and while in the ¡ ossession of B, sold by A to C, may be recovered by C, in a suit brought in his own name.

This was an action brought for the recovery of a negro boy. It appeared tipon evidence, that old William Stone was the owner of the boy, and that his son Juhn Stone being about to move to South-Carolina, had gotten the hoy into his possession; and that lie sold him as his property to the Defendant $ and that the Defendant had retained the possession of him as his own ever since j that after the sate, at d whilst Stuart had him in possession, the old man demanded him, and then sold him by a *183bill of sale executed to Robertson ; that then Robertson demanded the boy of the Defendant, and soon after brought ,this suit in his own name. The exception taken at the trial, and afterwards in arrest of judgment, was that this negro when sold by the old man to the Plaintiff, was a chose in action, and no* transferable; and that therefore Robertson could not maintain this action in his own name. Mr, Whyte cited for the Defendant Com. Dig. Verbo. Assignment, and 1 Bac. Ab. 157, and Co. Lit. 21 i, a. 266, a. ■ General Davie, for the Plaintiff, contended that the negro in question was not a chose in action, for a chose in action means only a thing or subject of dispute, so situated that the person entitled has no other means of obtaining the possession hut by an action at law, and excludes the idea of recaption, or getting a lawful possession by the act of taking if without the immediate aid of law — as in 'he case of a bond or other instrument for the payment of money, the obligee could qot take the money without the assent of the obligor tlio’ it lay before him, and he has iio,other means of obtaining the money bur by a suit at law : this definition will not apply to cases of specific property, in which the owner is not absolutely driven to a'suit at law to gain possession, but may take the thing in dispute into his possession wherever he can find it. This circumstance constitutes the difference between a chose in action, which cannot be taken, and a subject of property that may. He cited 2 R. Ab. 45, 46, and the opinion of Justice Bnller in 4 Term Rep. 340. In whith opinion it is said, that the rule of a chose, in action not being assign- • able, is not foumled„on good sense; and that the law at this day will protect the assignment of a chose in action, so as not to suffet the assignor or his contracts, to defeat or impair it; and that only so much of the rule now remains as respects the form of action, and directs that it must be carried on in the name of the assignor, ami that is now looked .upon in Courts of Law to he carried on for the benefit of the assignee. He argued that the rule now contended for by Mr. Whyte, was adopted in England in very ancient times, when the Lords were rich and powerful, and the other orders of men poor and indigent, before the diffusion of property introduced by commerce, and ata time when it might reasonably be appichended, that the influence of a powerful Baron, being an as-' signer, might he too weighty for a poor Defendant, eves *184though lie might have justice on his side; but since the circumstances of the people have been ameliorated by an influx of wealth, ami a consequent equality of fortunes and hf weight in the government, the influence of the nobles hath gradually declined in England, until it is now no longer an object oflegal jealousy, and the rule against the assignment of dioses in action hath been gradually relaxed and found to be of less use, until it has come, to be thought not only useless but inconvenient. In this country, these circumstances which gave birth to the rule have never existed, much less can they be said to exist at this time, when there is a perfect equality amongst the citizens of the country in respect of their legal advantages. There is even less reason for the rule here than iri England at this day, and therefore beside the point that the negro in dispute did not. agree witli the definition of a chose in action, he said it might be very justly doubted whether the rule itself was such an one as.our law would recognize. He argued further, that the circumstances of the ancient.villains in gross ínEn.g-land, ami of our slaves, were similar in most respects; and that in the times of villainage in England, a man could not in law be disseised or dispossessed of bis villain in gross. Go. Lit. 306, 307, Lif. s. 541. In (hose books it is laid dbvvri, that a man may be dispossessed of his ward, but not of his villain in gross. And the action da nativo habendo used for the. recovery of villains, was very similar in its principles to the action of detinue that we use for the recovery of slaves. Ami if in England a man could not be said to be dispossessed of bis villain, the same ought certainly to be the case with a slave here. And the owner cannot be legally said to be dispossessed of his slave, then it will follow that although at the time of this s de to the plaiutilf, the defendant had actually the possession of the negro, yet the legal possession was in Stone, and so the negro not a chose in action, even according to the idea entertained of it by the, defendant’s counsel. This distinction is found'd in nature, and the difference between this species o! p'operty, and every other kind known to the avarice of men. A flock of sheep or a horse is a passive subject, (he arbitrary will of the possessor designates its condition absolutely, either as the property of another, or bis own. But a slave is a rational creature, possessed of a will capable of directing his actions, and the *185law will not leave it in his power to change the absolute property of his owner into a more right of action whenever he pleases, by running away ami putting himself under the roof, or on the plantation of a stranger.

Mr. Whyte.

As to the definition of a chose in action, as given by the counsel on tiie other side, (lie case in Com. Ilig. states a lease of sheep for two years, and a sale of the lessor during these two years, and held ill. in that cáse, the vendee of the sheep after the two years might have taken them, yet were they held to be choses in action. Co. Lit. 214, a. states a right of entry into lands, and says it cannot he assigned; and in that case, the person having a right to enter need not bring his action, he may take possession when ho pleases, without the immediate assistance of the law. As to the rule itself, the object of it is to repress litigiousness, and that is as necessary here as in England, or any where else. As to the authorities relative to the villein in gross, he was not apprized of their being intended to be produced, and was therefore-not prepared to answer them; hut it seemed to him, that the cases of villeins in gross in England anciently, and of the slaves of this country, were widely different, A villein in gross was an inheritance, and jiassed by deed, and the action to recover him was a writ of right, or a writ de nativo habendo. And the rea--son why a man could not elect to suppose himself dis-seised of a villein in gross, perhaps might be owing to this, that he was not allowed to bring an assize or writ of entry for a villein in gross; but must betake himself to the writ de nativo habendo, and more especially as in the case of a ward, where the wardship wás considered as a chattel interest. Co. Lilt, says he may he dispossessed, and doubtless this distinction arose from the circumstance of being able to bring a personal action in this case, when in the case of the villein in gross, it was otherwise ; and the lawyers were obliged to use terms expressive of the real quality of the thing to he recovered. Whether these conjectures however are near the truth or not, it would be a strange doctrine to adopt at this day, that a man could not be dispossessed of his slave, after so many actions of trover and detinue have been brought for the recovery of slaves, and after it has been considered for so great a length of time, that an adverse possession of slaves for the length of time mentioned in the act: of Assembly concerning limitations of *186actions, will bar the owner’s action. How can this bo any longer effected, if the legal possession continues always in the owner, notwithstanding a dispossession in fact? Such a doctine as this, would overturn the act of limitations with respect to slave property entirely, and would render it more insecure than any other species of property whatever. He therefore could not believe it to be founded on principle, and concluded with praying that judgment might be arrested. — Curia advisare.

And at October term, 1795, this cause was again argued, as I haV(v understood from the counsel, and there was a judgment for the plaintiff, per Judges Ashe and Macay.

Note. — It is certainly true, that according to the notions of the ancient law relative to villeinage, a man could not be dispossessed of Ills villein ; he cannot be disseised or dispossessed of an incorporeal hereditament. Salk. 666. Co. Litt. 32. And such was a villein in gross. Co. Litt, 121 Gilb. on Ten. 74, 75. Co. Litt. 306, b. But the nativo hdbendo bore no resemblance to the writ of detinue, though it had the clause neo guie detlnent; it was directed to the Slierifl' against no person in certain, and was removable by pone or libertate probanda. F. N. B. 186, 187. It was comestible by the villain himself, by plea denying his villeinage. F. N. B. 190, 186. And the aim of the nativo habendo is agiinst no one but the villein himself, not against any third person, tin whose service or actual possession he maybe. F. N. B. 191. Sullivan 317, 319. For this latter purpose, other writs, considering the villein as an incorporeal hereditament, were used.

Note. — Vide Morgan v. Bradley, 3 Hawks 559. Stedman v Riddley v. Hawks 29, which latter case seems contra.