HOPKINS, C. J.
The action in this case was detinue for a slave.
Upon the trial of the issue between the parties, in the Circuit Court of Mobile county, the plaintiff offered evidence, which conduced to prove that he had the right of property in the slave. The defendant claimed the property in the slave, under a sale made by the sheriff of Mobile county. In support of his claim, he proved that the slave was legally committed to the jail of Mobile county, on the thirteenth day of March, eighteen hundred and thirty-three : that the first publication of the commitment was .made, by the sheriff, in the Mobile Commercial Register, on the nineteenth of the same month, which he continued to make in the paper, until the fourteenth of September, eighteen hundred and thirty-three, inclusive. On the last mentioned day, the sheriff advertised the slave for sale, at the proper place, on the fourteenth of the next October afterward, and on the twelfth of October, the sale was postponed, by an advertisement of the sheriff, until the twenty-first of the same month. On the last mentioned day, the slave was sold by the she[48]*48riff, and the defendant became the purchaser. It was proved by the sheriff, that he did not put up an advertisement of the .sale, at the court house of Mobile county, or at any other public place, and gave no other notice than the advertisement that has been mentioned, which he published in a newspaper.
The plaintiff requested the Court, to instruct the jury, that unless the sheriff published the commitment of the slave, six months after the appearance of the first publication of the commitment, and a notice of the sale, for thirty days after the expiration of the said six months, in some newspaper in the State, at the court house of the proper county, and at least two other .public places, within the same; his sale conveyed no title to the purchaser.
These instructions the Court refused to give, and charged the jury, that the title to the slave was in the purchaser, although the sheriff did not set up the several advertisements at the different places, unless the jury believed there was fraud and .collusion, between the sheriff and purchaser; and that if the plaintiff was injured by the acts or misconduct of the sheriff, his remedy was against the sheriff.
To the opinions of the Court, the plaintiff excepted, and the questions which arise from the assignments of error, are, whether or not the Court erred in refusing or giving the instructions, that have been mentioned.
The only source of authority which the sheriff had to sell the slave, is in the act of eighteen hundred and nine; which authorizes the commitment of any runaway slave to jail, and provides that if [49]*49any “ such runaway slave shall not be claimed,, and proved by the owner thereof, within six months from the first publication of the commitment of such slave, in some newspaper published in this State, it shall be lawful for the sheriff of the proper county,, to sell said runaway slave, at public auction, at the court house of his proper county, upon- giving at least thirty days previous notice, of such sale, by advertisement, published in some newspaper in this State, at the court house of the proper county, and at least two other public places within the same.”
The publication of the commitment of a slave, is required for the benefit of his owner. It is a source from which the master, will more probably learn, than from any other, where the fugitive is. It is the duty of Courts to give such a construction to the act, as will carry the intention of it into effect. The act does not prescribe the number of publications, or the time through which the sheriff shail continue to make them; but it does not au-thorise him to make any preparation to sell, until six months after the first publication. The terms of the act show that the intention of it cannot be executed by one publication. The object of the act in requiring the publication of the commitment, was, to open a source of information for the benefit of the master. As it withholds authority from the sheriff, for six months, to take any measure for a sale, and requires more than one publication, we think the number of the publications intended by the act, is limited by the numbers published of the newspaper, which contains them, from the first publication of the commitment, to the end of the six [50]*50months. But if the publication be continued to the last number of the newspaper, that was published before the expiration of the six months, and be made in that number, it would be sufficient.
It appears from the record, that the last publication of the commitment, was in the newspaper in which it was first made, and had been continued, on the fourteenth of September, a few days only before the six months expired; and it does not ap-, pear that any number of the newspaper was published, between that day and the end of the six months. If it had been proved that no number was published afterward, and before the termination of the six months, the publication would have been sufficient. The publication must be proved by the party, whose right depends upon it; and as the defendant did not prove, that it was made in the paper as often as it could have been, within the six months, we are of opinion, there was a failure to prove the publication required by the statute.
The next question is, as to the authority of the sheriff to advertise the sale before the expiration of the six months. If at the end of the six months, the master should claim and prove his property in the slave, there would be no right in the sheriff to sell; and it cannot be the intention of the act, that he shall have authority to advertise a sale, before it is known that one will be necessary. If he had the authority, and should exercise it, the consequence would be, that the master who proved, at the end of the six months, his right to the slave, would be bound to pay the cost of the advertisement. To exempt the master from such charge, and to avoid [51]*51the inconsistency of the sheriff’s acting, while it is uncertain whether he will ever have a right to sell, as if he had acquired it, the act ought not to be so construed as to give him an authority, which the terms of the act do not confer.
We think, therefore, that the notice of the sale, must be given for thirty days after the expiration of the six months.
This notice must be given by advertisement, published in some newspaper in this State, at the court house of the proper county, and two other public places within the same county, because the act requires it. If we were convinced of the truth of the argument, which was relied upon by the defendant’s counsel, that no more persons would have known of the time and place of the sale, if the omitted advertisements had been made, than did' know these facts, from the one published in the paper, we could not disregard the part of the act that requires them. The reasoning in a future case, might be as plausible in support of such a sale, made upon advertisements at the proper public places only,' upon the ground that the circulation of every newspaper in the State, was so limited in the county, where the sale was made, the publication of an advertisement in any, could not have made the notice more general than it was.
The operation of the act ought to be uniform, and the rule of action which it prescribes, observed in every county.
The case of Fitch vs Dunlap,*
Free access — add to your briefcase to read the full text and ask questions with AI
HOPKINS, C. J.
The action in this case was detinue for a slave.
Upon the trial of the issue between the parties, in the Circuit Court of Mobile county, the plaintiff offered evidence, which conduced to prove that he had the right of property in the slave. The defendant claimed the property in the slave, under a sale made by the sheriff of Mobile county. In support of his claim, he proved that the slave was legally committed to the jail of Mobile county, on the thirteenth day of March, eighteen hundred and thirty-three : that the first publication of the commitment was .made, by the sheriff, in the Mobile Commercial Register, on the nineteenth of the same month, which he continued to make in the paper, until the fourteenth of September, eighteen hundred and thirty-three, inclusive. On the last mentioned day, the sheriff advertised the slave for sale, at the proper place, on the fourteenth of the next October afterward, and on the twelfth of October, the sale was postponed, by an advertisement of the sheriff, until the twenty-first of the same month. On the last mentioned day, the slave was sold by the she[48]*48riff, and the defendant became the purchaser. It was proved by the sheriff, that he did not put up an advertisement of the .sale, at the court house of Mobile county, or at any other public place, and gave no other notice than the advertisement that has been mentioned, which he published in a newspaper.
The plaintiff requested the Court, to instruct the jury, that unless the sheriff published the commitment of the slave, six months after the appearance of the first publication of the commitment, and a notice of the sale, for thirty days after the expiration of the said six months, in some newspaper in the State, at the court house of the proper county, and at least two other .public places, within the same; his sale conveyed no title to the purchaser.
These instructions the Court refused to give, and charged the jury, that the title to the slave was in the purchaser, although the sheriff did not set up the several advertisements at the different places, unless the jury believed there was fraud and .collusion, between the sheriff and purchaser; and that if the plaintiff was injured by the acts or misconduct of the sheriff, his remedy was against the sheriff.
To the opinions of the Court, the plaintiff excepted, and the questions which arise from the assignments of error, are, whether or not the Court erred in refusing or giving the instructions, that have been mentioned.
The only source of authority which the sheriff had to sell the slave, is in the act of eighteen hundred and nine; which authorizes the commitment of any runaway slave to jail, and provides that if [49]*49any “ such runaway slave shall not be claimed,, and proved by the owner thereof, within six months from the first publication of the commitment of such slave, in some newspaper published in this State, it shall be lawful for the sheriff of the proper county,, to sell said runaway slave, at public auction, at the court house of his proper county, upon- giving at least thirty days previous notice, of such sale, by advertisement, published in some newspaper in this State, at the court house of the proper county, and at least two other public places within the same.”
The publication of the commitment of a slave, is required for the benefit of his owner. It is a source from which the master, will more probably learn, than from any other, where the fugitive is. It is the duty of Courts to give such a construction to the act, as will carry the intention of it into effect. The act does not prescribe the number of publications, or the time through which the sheriff shail continue to make them; but it does not au-thorise him to make any preparation to sell, until six months after the first publication. The terms of the act show that the intention of it cannot be executed by one publication. The object of the act in requiring the publication of the commitment, was, to open a source of information for the benefit of the master. As it withholds authority from the sheriff, for six months, to take any measure for a sale, and requires more than one publication, we think the number of the publications intended by the act, is limited by the numbers published of the newspaper, which contains them, from the first publication of the commitment, to the end of the six [50]*50months. But if the publication be continued to the last number of the newspaper, that was published before the expiration of the six months, and be made in that number, it would be sufficient.
It appears from the record, that the last publication of the commitment, was in the newspaper in which it was first made, and had been continued, on the fourteenth of September, a few days only before the six months expired; and it does not ap-, pear that any number of the newspaper was published, between that day and the end of the six months. If it had been proved that no number was published afterward, and before the termination of the six months, the publication would have been sufficient. The publication must be proved by the party, whose right depends upon it; and as the defendant did not prove, that it was made in the paper as often as it could have been, within the six months, we are of opinion, there was a failure to prove the publication required by the statute.
The next question is, as to the authority of the sheriff to advertise the sale before the expiration of the six months. If at the end of the six months, the master should claim and prove his property in the slave, there would be no right in the sheriff to sell; and it cannot be the intention of the act, that he shall have authority to advertise a sale, before it is known that one will be necessary. If he had the authority, and should exercise it, the consequence would be, that the master who proved, at the end of the six months, his right to the slave, would be bound to pay the cost of the advertisement. To exempt the master from such charge, and to avoid [51]*51the inconsistency of the sheriff’s acting, while it is uncertain whether he will ever have a right to sell, as if he had acquired it, the act ought not to be so construed as to give him an authority, which the terms of the act do not confer.
We think, therefore, that the notice of the sale, must be given for thirty days after the expiration of the six months.
This notice must be given by advertisement, published in some newspaper in this State, at the court house of the proper county, and two other public places within the same county, because the act requires it. If we were convinced of the truth of the argument, which was relied upon by the defendant’s counsel, that no more persons would have known of the time and place of the sale, if the omitted advertisements had been made, than did' know these facts, from the one published in the paper, we could not disregard the part of the act that requires them. The reasoning in a future case, might be as plausible in support of such a sale, made upon advertisements at the proper public places only,' upon the ground that the circulation of every newspaper in the State, was so limited in the county, where the sale was made, the publication of an advertisement in any, could not have made the notice more general than it was.
The operation of the act ought to be uniform, and the rule of action which it prescribes, observed in every county.
The case of Fitch vs Dunlap,* cited for the fendant, is not opposed to the construction we have given to the act. In that case, an act was constrm [52]*52,ed, which required that notice of the sale of land, should be given for at least thirty days, before the sale, by advertisement in some newspaper, printed in the county where the lands were situate; or in case no newspaper be printed within said county, then in some newspaper in general circulation therein, and by putting up an advertisement upon the court house door, and in five other places in the county.
The Court decided that the effect of the disjunctive “ or,” which was used in the sentence, was to make two clases of cases, and that where the advertisement was published in a paper, printed in the county in which the land was situate, no advertisement elsewhere, was required; but where there was no newspaper in such county, the advertisements'should be put up at the places directed by the act.
The case cited from 3 McCord’s Rep. 290, was upon a similar act, which divided the cases, in which it required notice, into two classes, and prescribed a different mode of giving notice in each class.
The sheriff had no general authority, as sheriff, to sell runaway slaves, but a special power conferred by the act. The grant of the power was accompanied by directions, to regulate the exercise of it. If he had executed it properly, the property of the owner of the slave, would have been transferred to the purchaser. The principle applicable to such a case is well settled, “that the person invested with such a power, must pursue the course prescribed by law, or his act is void.” Any person [53]*53who purchases of him, is charged with knowledge of the extent of his power. Every act the sheriff is required to do, under this act, is, if performed, a constituent part of the title of the purchaser, from him, and evidence of each one of them must be given, in support of a title, set up under a sale, by the sheriff, in such a case.*
The effect of the proviso to the act, upon sales, is .confined to sales made according to all the tions of the act. Such sales only, are valid.
We are of opinion, that the Court erred in refusing the instructions for which the plaintiff moved, and in the charge that was given.
The judgment is reversed, and the cause remanded.
GOLDTHWAITE, not sitting.
Aik. Dig. 395.