| S.C. | Feb 2, 1874
The opinion of the Court was delivered by
There are two questions involved in this appeal: First, whether, in determining the lien of an execution upon personal property, regard is to be bad to fractions of a day. Second, if not, is the distribution of the fund from the same levy, made on two executions, on the same day, to be by equal divisions of the proceeds, and not pro rata ?
While it is true that the common law, as a general rule, will not notice fractions of a day, unless to give effect to a right which would be defeated, but for their recognition, yet the exceptions by the English decisions in regard to their application to judicial proceedings have not been uniform. While Mr. Tidd, in his second volume, at page 1001, refers to several authorities to sustain his text, that “ as between different plaintiffs, if two writs of execution be delivered to the Sheriff on the same or different days, he ought to execute that first which was first delivered,” in Lord Porchester’s Case, Tr., 23, G. 3, cited by Justice Buller in Pugh vs. Robinson, 1 T. R., 157, it was held that where there were two judgments, both referring to the same day, priority of one could not be averred.
The mode and manner by wdsich liens are to be created on real estate by judgment, and on personal property by executions, the extent of their binding effipacy, the effect of the disposition of levies under the latter, their operation, and all the incidents attaching to them as the medium through which satisfaction of the debts on which they issued is to be made, depend on the statutes of the State, and the construction which has been given to them by the Courts charged with their exposition. There is probably not a State in the Union which has followed • the course of the common law in regard to the enforcement of judgments and executions. It would be almost impossible, from the nature of our government, and the condition of our people, to conform our practice to that
The doctrine of liens, through the writ of ft. fa., prevailing in South Carolina, owes its origin to the 16th Section of the Statute of Frauds, 2 Stat., 528, and the 37th Section of the Act of 1785, 7 Stat., 229. As to the binding effect of the writ, the language of both is almost identical. They both require the Sheriff, or other officer to whom it may be delivered, to endorse on the back of it the day of the month and year of its receipt. It would thus appear, that while regard was to be had to the day, as fixing the time from which its binding efficacy was to begin, all reference to the particular hour at which it was lodged, as the period from which any rights under it were to arise, was precluded. The endorsement of the day was to afford evidence of the time to which its binding effect was to relate; and if any advantage as to priority, through the hour of lodgment, was to be attained, the statutes failed in a material requisition in not directing the officer to note it on the process.
In Ex Parte Stagg, 1 N. & McC., 405, it was said that the law will not allow fractions of a day to affect legal proceedings, and that, of two executions of the same day, neither shall have preference. Whether this was a mere dichim, or the recognition of a principle accepted and expressed by the whole Court, for over fifty years the practice has conformed to it in every particular, and we are bound to enforce it, unless something may be found in the Code of Procedure, lately adopted, which compels a departure.
To change a practice in judicial proceedings which has been accepted and followed for over half a century, positive enactment must be shown, or such action of the legislative authority as leaves no doubt of its intended purpose. Inferences from doubtful implications will not suffice.
The 316th Section of the Code 'only changes the act which is to give binding efficacy to the execution. It is no longer to follow from the mere lodgment with the Sheriff, but from the actual “levy” or “attachment.” The succeeding Section preserves “the existing provisions of law, not in conflict with this Chapter re
No aid is derived to the argument on behalf of the motion from the use of the word “attachment” in the same connection. It was not intended to apply to what was formerly known in the State as a writ of foreign attachment, now provided for by the fourth Chapter, Title VII, of the Code, Gen. Stat., 622. It cannot be taken in the connection in which it is found in any other sense than as synonymous with “ levy.” If the term is to be there understood as referring to the process provided against absent debtors who have property subject to the jurisdiction of the Court, its lien now “ ranks,” not from the hour, but “from the day” when it is lodged with the Sheriff, (Gen. Stats., 624.) Before the adoption of the Code the lien of the fi. fa. was referred to the entry in the Sheriffs office-now it takes effect from the levy; but all the other incidents attaching to or consequent upon it, except as directly, or by irresistible inference, provided by the Code remain unchanged.
Holding that the levy under each of the two executions, on the same day, prevented a preference or priority in favor of that on which it was first made, we are not disposed to change the long established rule of the Court, that the proceeds of the levies must be divided between the two executions in ratable proportions. Doubtless a different practice may obtain in New York, and probably in some other of the States, by which the funds would be required to be equally divided between them, regarding the levies as made at the same time. We are not disposed to depart from the course so long adopted, and followed by our Courts, accepted by the bar, and understood by the community, and not requiring any change, as is manifest by their long acquiescence without complaint in the practice as it exists. The motion is dismissed.