#### Rogers & Thompson *v.*John S. Moore.

Independently of the act of 1827, in relation to the action of trover, the doctrine in this state is well settled — “ that a verdict for the plaintiff, in trover, changes the property and transfers the *right*to the *defendant,*and makes it liable to be taken in execution for his debts.”

The leading case on this subject in this state, is that of *NorreTl*v. *Corley,*decided by the late court of appeals, in December, 1828 (not reported) ; in which the opinion of the court was delivered by the late Mr. Justice Nott. That was a case in *chancery,*where a bill was filed by the plaintiffin trover, who had, recovered at law, to make the property which was the subject of the action, liable to the plaintiff’s recovery, in preference to other creditors. The court said “ by bringing an action of trover, the plaintiff trusts to the personal credit of the defendant, in the same manner as by taking a note or bond in payment of property sold: the property is changed, even though the money should never be recovered.”

The trover act of 1827, is not a declaratory act. The very title of the act, (which is “ an act to *alter*the law in relation to the action of trover,”) shows conclusively that the legislature supposed the law to be otherwise before, and the whole tenor of the first and important section demonstrates, that the purpose was to provide a *new*remedy in actions *after-wards to he*commenced. The act therefore does not apply to an action of trover commenced *before*the passing of the act.

*Before EARLE, J, act York, Fall Term,*1837.

This case came up on a special verdict which found substantially the following state of facts. “ That an action of trover *61was commenced by the executors of Solomon Hall, in January, 1826. After the trover act of 1827, the plaintiffs, under the provisions of that act, obtained an order for special bail, agreeably to its provisions, by which the defendant was arrested, but never gave bond, and- was discharged by the order of the plaintiffs. In 1831, a verdict was obtained in favor of the executors of Solomon Hall, judgmentTssuecTand execution lodged, April 4, 1831, after the adjournment of the court. The judgment of the plaintiffs in this action was by confession, on the second of April, 1831, the last day of the term, and execution lodged the same day. The defendant, the sheriff of York district, by virtue of executions in his office, proceeded to levy on the negroes, the subject of this action of trover, and sold them on the 5th of September, 1831, for $2,263. At October term, 1831, the present plaintiffs ruled the defendant to shew cause why he did not pay over the proceeds of the sale of the negroes to plaintiff’s execution; which was dismissed by his honor judge Richardson. The plaintiffs appealed from the decision of the judge, but owing to the fact that the report was lost, the cause was stricken from the appeal docket, and was never heard by that court. After the case was stricken from the docket, and at the same term, the plaintiffs’ counsel obtained a further report from judge Richardson, and moved to reinstate the cause op the docket; but the judge saying that he had, of his own knowledge, no particular recollection of the case, and the motion being opposed by defendant’s counsel, it was refused. Immediately after, the defendant was notified not to pay over the money to the execution of the executors. The plaintiffs afterwards commenced the present action againslVthe defendant. “-If, from the foregoing statement of facts, the court should be of opinion that the plaintiffs are entitled to the proceeds of the sale of the negroes, we find for the plaintiffs, five hundred dollars, with interest from the 1st of January, 1831; if not, we find for the defendant. ” On this verdict his honor the presiding judge pronounced the following judgment: “ On the case made by the foregoing special verdict, it is considered by the court now here, that the plaintiffs are entitled to recover. And it is therefore ordered that the postea be delivered to them.”

*62The defendant appeals on the grounds: 1. That the decision of his honor judge Richardson, on the question of right, was final and conclusive. 2. That the rendition of the verdict in trover without satisfaction, did not change the right of property in the negroes. 3. That *ex aequo et bono,*the plaintiffs are not entitled to maintain assumpsit for money had and received under the circumstances of this case. 4. That interest is not allowable under the circumstances.

Curia, per Earle, J.

The right of the plaintiffs to recover in this action, cannot be affected by the circumstances which occurred, in relation to the rule upon the sheriff, formerly obtained at their instance, and which was dismissed on *the hearing, by Mr.*Justice Richardson. Had the question on the rule been made in this court, it may be doubted whether the same result would not have ensued, on the ground that important questions of property or right will not be determined in such summary way; but, the parties will be left to their remedy by action. In the present state of the case, the judgment on the rule does not preclude the plaintiffs. — The other and important question, whether on the case made by tjie verdict, the postea .should not be delivered to the defendant, upon the ground that the right of property remained in the plaintiff in trover, until satisfaction; and therefore, that the plaintiffs in this action cannot recover the proceeds of the sale, has been very much debated, and has been forcibly and well argued here. If it were a new question, and this court considered itself at liberty to adopt a rule on the subject, in accordance with its own view of principle and precedent, it is not unlikely that the result might be more favorable to the defendant’s motion. Yet, the court intends to express no opinion, that shall shake the authority of the cases * decided c < this point, of which Norrell v. Corley is the leading one. That case was decided by *63the late court of appeals, December term, 1828 ; and the opinion of the court was delivered by the late Mr. Justice Nott. The learned judge reviews the authorities, controverting the opinion of Chancellor Kent, that the other is the more reasonable doctrine, and comes to the conclusion that, both on principle and authority, the verdict in trov.er changes the property, and transfers the right to the defendant, and makes it liable to be taken in - execution, for his debts. That was a case in chancery, where a bill was filed by the plaintiff in trover, who had recovered at law, to make the property, which was the subject of the action, liable to the plaintiff’s recovery, in preference to other, creditors. The f court said, “ by bringing an action of trover, the plaintiff trusts to the personal credit of the defendant, in the same manner as by 1 taking a note or bond in payment of property sold: the property ji is changed, even though the money should never be recovered.”»' It has been urged in this court, that the act of 1827 is declaratory; and as the trial here was afterwards, in 1831, the- provisions of that act ought to be held to apply. But the court thinks otherwise. Indeed, in Norrell v. Corley, the title of the act is referred to, and recited — “ an act to alter the law in relation to the action of trover,” — as conclusive that the legislature supposed the law to be otherwise before. And this court is of opinion now, that the inference drawn by Mr. Justice Nott is reasonable, and conclusive against the motion. Besides, the whole tenor of the first and important section demonstrates that the purpose was to provide a.remedy in actions afterwards to be commenced. The defendant therefore cannot avail himself of the benefit of the provisions. As the act affords a remedy for what was certainly a *64great evil, in all future cases, the court feels less reluctance in adhering to the decision in Norrell v. Corley.

*Hill,*for the appellant.

The judgment of the circuit court is affirmed.

Gantt, Richardson, O’Neall, Evans, and Butler, Justices, concurred.