9 N.C. 309 | N.C. | 1823
Lead Opinion
My enquiries, m wuc ca._ , have led me to the belief, that the Plaintiff is entitled by law, to the money in the hands of the Sheriff, by virtue of the prior teste of his execution. I do not mean to give an opinion on any other facts than those stated on the record; nor, particularly, on the supposition that the money had been raised by a sale under the second execution»
The writ offufa, in this State, binds the Defendant’s goods from the teste of the writ, after which time, any sale of them is void ; because, from thence the goods are attendant to answer the execution. This is an old rMo of the Common Law, founded on the reason, that as &v cutions could issue only against goods which miglt,;r not so bound, be sold by the party, he would thus be í hh to evade what is,termed the life of the law, its effect and fruit. The Common Law, also, presumed that the SI <■ riff would execute such writs immediately, and thereby give such publicity to the transaction as ivould prevent imposition upon purchasers. The judgment did not bind, because that being in force for a year, it would have been vexatious to restrain the debtor from his ordinary private dealings for so long a period.
When the term lien is applied to other subjects in the law, its import is familiarly understood to be a binding, or attachment of the thing spoken of, for the benefit of him who is entitled thereto. The lien of a vendor on goods not yet delivered, of a carrier, a factor, or pawnbroker, entitles them, respectively, to a priority over others, whose claims are posterior, upon the simple rule of justice, that the first lien gives a right to the first satisfaction.
When that statute was passed, the priority arising from the teste was understood to subsist in theory in full vigour: every book that treated on executions, laid it down as settled law : and the statute itself had no further view, than to restore its practical utility by the substitution of a lien better fitted, by its notoriety, to prevent fraud and injustice to third persons.
It was not that the rule of the Common Law was defective, in fixing on the teste of an execution to bind the Defendant's goods ; because, in reality, the law supposed the execution to be delivered to the Sheriff immediately from the teste ; and if, in point of fact, that had been done, the purposes of the statute would have been accomplished, and its enactment rendered useless. Thus the award of an execution, and the teste of an execution, are convertible terms ; but the former is chiefly used in cases before the statute. A Jmiafide, sale of chattels is good after judgment, but not after execution awarded — (8th Co. 170.) “ By the award of execution the goods arc bound, so that they may be taken in execution, into whose hands soever they come” — (Cro. Eliz. 174.)
But the real mischief intended to bo remedied was, that creditors took out executions, one under the other, without delivering them to the Sheriff, whence the retrospect of the teste made sales uncertain, each Plaintiff" being entitled, according to his relative priority ,• and it was utterly impossible for purchasers and strangers to tell, without an inspection of the record, a process neither cheap nor easy, to what extent- the goods were hound.
If this position be correct, I would infer from it this-corrollary, that the cases, since the statute of frauds, shewing the force and extent of the lien created by the delivery of the writ oifi.fa. will go very far towards explaining and proving the extent and operation of the lien arising from the teste before the statute. A more direct mode of shewing the question would be, to adduce cases which occurred before the statute ; but none such, directly in point, are to be found. There are, however, dicta and decisions of modern Judges, relative to the Common Law in this point, which, if correctly reported, are entitled to much consideration. Lord Mansfield decided, that though the Sheriff had seized under one writ first, he was bound to sell under another delivered after-wards, if it had a prior teste — cited in 4 East 534, in notis. To the same effect, is the opinion of the late Chief Baron MacDonald, who having presided many years in the Court of Exchequer, may be supposed, was well instructed on the subject. His words are, ie I take it, before the statute of frauds, a writ of execution of a prior teste, would have been preferred to a writ of execution of a subsequent teste, although the latter was first delivered to the Sheriff, and was begun to be executed, provided that the writ of prior teste came to the Sheriff’s hands before sale” — cited in 16 East 279, in notis. If these opinions of these eminent men are to be relied on as authentic, they go the whole length of the present controversy. They will be found too, in accordance with the decisions since the statute.
The case of Hutchinson v. Johnson, (1 Term Rep. 729) shews, that where two writs of fi. fa. against the same
It is submitted to this Court to direct to the discharge of which execution the money arising from the sale, and now in the hands of the coroner, shall be paid,
Executions at Common Law had relation to their teste, and from that time, so bound the property of goods and chattels as against the Defendants, and all claiming under them, though for a valuable consideration, that they were subject to be taken in execution — (8 Co. 171— Cro. Elizabeth 174, 440.) But it does not so vest the property in the goods as to defeat a sale made of the same goods under another execution — (1 Lord Raymond 252 — 1 Salk. 320 — 1 Coni. 35.) For otherwise, says Lord Holt, no one would purchase at an execution sale — (1 Ld. Raym. 252.) Whether such sales were held good at Common Law, for the reasons given by Ld. Holt, or whether by the statute of frauds, (as seems to be Jlshursl’s opinion in Hutchinson v. Johnson — 1 Term Rep. 731,) is not material in the consideration of the present question. It may be taken for granted that such is the law, and that the injured Plaintiff whose execution had a priority, and which was postponed by such sale, had a remedy against the Sheriff: see Rybot v. Peckham — (1 Term Rep. 731, Note.) It has been said, that because vendees under junior executions were pro
33 ut the reason why such sales are held good, does not apply to cases where goods have been levied upon, but not sold, and perhaps would not apply to cases where sales had taken place and the money was still in the hands of the Sheriff; because, although a sale had taken place, and the vendees were not to be disturbed, the money when not paid over might be applied to the discharge of the execution which had the prior right. But this question is not now to be decided, because in the case before us there liad been no sale, but only a levy under the execution, which issued from the County Court before the execution which issued from the Superior Court came into the hands of the Coroner.
in England, by the skit. 29, Car. 2, eft. 3, sec. 16, ex. ecutions bound the property of goods and chattels only from the time that such writs were delivered to the Sheriff to be executed, so that the lien which executions had at Common Law from their teste upon goods and chattels, commenced under that statute, from their delivery to the Sheriff. And it seems to me that the same law applied to executions delivered at different times to the Sheriff, as applied at Common Law to executions heal - ing different testes, and that before the statute, the delivery to the Sheriff did not alter the lieu created by the teste, more than since the statute the teste will affect the Men created by the delivery to the Sheriff,
But on the point of law involved in this dictum of Ld. Holt, so differently reported, we have, by way of expía-
1 cannot see the effect that the case of bankruptcy in intended to produce. I ana not aware of any case where the assignees of a bankrupt have been adjudged to he eu titled to property taken under an execution before an act of bankruptcy committed. If an execution issues into the hands of a Sheriff, but is not levied upon property in the hands of the Defendant, and the Defendant, in the mean time, commits an act of bankruptcy, i admit that the lien created by the issuing of the execution is lost, and the assignees of the bankrupt are entitled, because the slat. 31st Jac. 1» ch. 19, sec. 9,11, expressly declares, “ that the property in the bankrupt’s possession, at the time of becoming a bankrupt, shall belong to the assignees of his commissioners, whereof there is no extent or execution served or executed before such time as he shall be - come bankrupt” — (1 Burr. 20.) So that the lien created by issuing the execution is expressly destroyed by that statute j but if the property had been seized before the commission of the act of bankruptcy, the creditor in the execution would have the preference.
But laying aside authorities on this subject, as contra - dictory and unsatisfactory, can there be any doubt as
For these reasons, I think the money in the hands of the coroner, arising from the sale of the land, should be paid to the Plaintiff in the execution which issued from the Superior Court bearing teste prior to the one under which the property was levied upon, that issued from the County Court.
Dissenting Opinion
dissentiente. — This case is submitted without argument, and I fear I have not been able to find all the cases on the subject, or duly to understand and appreciate those I have found. The result of my investigation is, that neither at the Common Law nor since the statute of frauds, did either the teste or the delivery of the writ of execution bind or fix upon the property, otherwise than to affect it in the hands of a voluntary purchaser : that as between the debtor and the creditor, the property was not divested by either; and that at the Common Law, the first delivered writ of ex-