1798. Snipes V. The Sherif given length of time, and so there would be no end to it, which would, it was contended, be absurd. That as the execution had, on the expiration of the year and day agreeable to this doctrine, lost its lien, if any other execution step- of Charleston ped in before a renewal of the former one by scire facias, it had by construction of law, a preference; and that as there has been no renewal of O'Hara's execution, in that case, Snipes was well entitled to have the money in the sheriff's hands. On the other hand, again, it was insisted by the counsel against the motion, that the execution did not lose its lien or binding efficacy, on the expiration of the year and day, only its active energy. That by the statute of frauds, the commencement of the lien was created by the delivery of the execution to the sheriff, which was a right given to the plaintiff; and that by virtue of this right, the defendant's goods were attendant upon the execution, for satisfaction of the plaintiff's demand. That neither the common law, nor the statute of frauds, fixed any period to the duration of this lien and that therefore of necessity, it must remain till final satisfaction was made. It was admitted by them, that a plaintiff could not proceed upon his execution after a year and a day, without renewing it by scire facias. But if a younger execution forced a sale of the defendant's goods, they must be sold subject to the prior lien, and of course such prior executions must be first paid off, in the same manner as prior mortgages must be paid off first, when sales are made upon subsequent ones. It was further insisted, that the practice hitherto had been to pay off prior executions, which had not been renewed, upon sales forced by younger executions; and it was the duty of the court to support such a practice, as by far the greatest part of the personal property sold under execution since the year 1785 was appropriated in this manner, to the eldest executions first. That to unravel such a multitude of cases, and call in question such a mass of property as would be affected by doing away such a practice, would be throwing the country Yop. J. PP District 1793. Snipes V. The Sheriff of Charleston District into a prodigious scene of confusion and distress. The cases the counsel relied on, were 2 Bac. 362. Carth. 2 Show. The Court took time to consider, and afterwards delivered their opinions, seriatim. RUTLEDGE, Ch. J. was of opinion that the execution lost its efficacy at the expiration of the year and day, until renewed by a scire facias, and that this had been the former practice in this country. BURKE, GRIMKE, WATIES, and BAY, Justices, were of a contrary opinion. That the execution did not lose its binding efficacy on the expiration of the year and day, only its active quality; and that when sales were made under younger executions the goods were subject to all prior ones, and they must, and ought to be, paid off first in order, agreeable to their seniority. That whatever might have been the former practice of the country, they thought the reason and justice of the thing, as well as the peculiar situation of this country since the peace, owing to sheriffs' sales, bills, and instalment laws, which prevented plaintiffs, for years, from recovering their money, justified them (even if it was a doubtful case in point of law, which they by no means thought) to support the practice of the sheriff in pay, ing off the eldest executions first. Rule discharged. ATKINSON against TEASDALE. January a factor to a ASSUMPSIT for fifty barrels of rice, of the value of Debts due by 128/. 12s. 4d. sold by one Fardo, a factor, who afterwards purchaser of became insolvent. rice, &c. catnot be set of in discount a The defence set up was, that the rice was purchased from gainst the deFardo, and the defendant being in possession of Fardo's mand of the original ownnote, as also of a bond, assigned over to him, he contended er, brought by him against he had a right to set them off against the purchase-money such purchafor the rice, as in the transaction he had nothing to do with Atkinson, the present plaintiff. But The Court (present, RUTLEDGE, Ch. J. GRIMKE, J. and BAY, J.) overruled the plea and discount, being clearly of opinion that the factor, in this case, was only the servant of his principal, and that the property remained in him till actual payment of the money. That payment to the factor, it is true, would have been good payment to the principal, if there had been any receipt to shew it had been made. But, on the other hand again, there was neither law nor justice in favour of the purchaser's setting up a debt due from the factor to him, (much less to third persons, and negotiated to him,) against the fair demand of the original owner. In fact, it would be neither more nor less than robbing one man to pay the debt of another. ser. Verdict for the plaintiff. January Team. The Executors of GODFREY against FORREST. ASSUMPSIT for rice sold by Fardo, a factor. This cause was nearly similar to the foregoing one, but not tried by the same jury. The same kind of defence was set up, viz. a debt due from Fardo to the defendant. The only difference was, that, in the foregoing case, Teasdale seems to have procured the bond and note of Fardo's for the purpose of setting them off against Atkinson's demand, whereas, in the present case, Fardo fell indebted to Forrest for goods sold and delivered; and Fardo dying insolvent, Forrest contended he had a right to set off Fardo's debt against the value of the rice, on the ground that he had made no contract with the plaintiffs, and did not know them in the transaction. In the course of the arguments for the defendant, his counsel relied on 4 Burr. 2046. and Str. 1182. The Court, upon the same ground as in the preceding case, were clearly of opinion that a factor could not give the goods of his principal in payment of his own debts. That the sale of the factor raised a contract between the original owner and the purchaser ; and that nothing but actual payment, either to the factor or principal, would discharge such contract. The jury returned a verdict for the defendant; and on motion for a new trial, made on the adjournment day fol lowing, it was ordered without argument. The cause came on to be tried, a second time, in the succeeding May term, before a special jury, consisting of merchants and planters, when, after remaining all night in the jury-room, they returned into court, next morning, equally divided in opinion, viz. the planters for the plaintiff, and the merchants for the defendant. And as both parties ex pressed their fixed determination to adhere to their opi nions, they were, by consent of the parties to the suit, dismissed. 1793. Executors of V. Forrest. BULL against HORLBECK. May Terat Any negr slave foundac cidentally on the premises, is distrainable for rent due by the tenant, THIS was an action of replevin. The case was, that one Cobb had rented a tenement from the present defendant and avowant; and there being due for rent in arrear 451. he seized the plaintiff's negro, who happened to be found accidentally on the premises. So that the simple question was, the property whether the negro of a third person, accidentally found on the premises of a landlord, could be distrained, for rent due by the tenant, or not? Lee, for the avowant, contended, that by the common law, any and all the goods and chattels found on the premises, were distrainable for rent in arrear. That it was not the business of the landlord to inquire into the right of property of his tenant to any goods actually in his possession-it was enough that they were on the premises; otherwise it would be easy for a tenant to collude with another, exchange property for a few days, until he could move from a house, and thereby defeat the right of the landlord to this summary mode of redress by distress. That it had been the constant practice in this country heretofore, to consi der negroes found on leased premises as liable to a distress. Pringle and Desaussure, contra, admitted the doctrine contended for, as to every species of personal property, excepting negroes. As to them, the common law could not apply, because slavery was unknown in England, from whence we borrowed the principles of the common law; consequently, such a species of property could never have been in the contemplation of the common law. The doctrine of slavery was a part of the civil law, and incorporated whether he is of the tenant or not. |