14 S.C. 35 | S.C. | 1880
The opinion of the court was delivered by
The object of this action is to recover the value of a bale of cotton, sold to the defendant by one Morris, upon which the plaintiff claimed to have a lien, by virtue of an. agreement in writing, between himself and said Morris, which, it is insisted, amounts to what is commonly called an agricultural lien, under the provisions of the act of March 4th, 1878. Iff Stat. 410. This agreement, bearing date January 13th, 1879, a copy of which is set out in the case, was received in the clerk's-office on January 17th, 1879, and so marked, and was indexed by the name of the parties, the amount of the advances and the date of its entry in that office; but as soon as it was indexed it: was taken out of the office by the plaintiff and remained in his-possession until the trial in the court below. The action was originally instituted before a trial justice, and, he having rendered judgment for the plaintiff, the defendant gave notice of' appeal to the Circuit Court upon various grounds, which are fully set out in the case. That court proceeded to hear the casede novo, and, upon such hearing, rendered judgment for the defendant, and from that judgment this appeal has been taken.
Various exceptions were taken to the rulings and the final-decision of the Circuit judge, and the questions thus raised will be considered in their order. The first question is as to the right-of the defendant, who was the appellant in the Circuit Court, to-have a trial there de novo. It is contended here that as the grounds of appeal from the judgment of the trial justice raised
The next position taken, is, that even if the trial should be de novo the parties should have been restricted to the issues raised before the trial justice, and that the Circuit Court erred in permitting the defendant to offer additional testimony to that adduced before the trial justice. We do not see the force of this objection. When a new trial is had, it seems to us that it should be conducted just as if there had been no previous trial, and either party is at liberty to offer any competent testimony pertinent to the issues involved in the case. Here there were no formal pleadings before the trial justice. The plaintiff alleged that he was entitled to recover the value of the bale of cotton in question, and this being denied by the defendant, any testimony
The next question to be considered is, whether the paper in question, assuming it to be an agricultural lien, would authorize the bringing of this action; in other words, whether the lien provided for by the statute invests the lienee with such a right of possession in the property covered by the lien, as would entitle him to recover the value of such property from an innocent purchaser -who had previously disposed of it. An agricultural lien, as it is commonly called, is the creature of the statute, and to ascertain its nature and the rights which it confers, resort must be had to the terms of the statute. Looking into the statute we do not find that it purports to give such a paper the incidents of a chattel mortgage. It does not confer upon the lienee the right to the possession of the property covered by it even after default and while the property still remains in the possession of the lienor, and, certainly, not while it is in the possession of an innocent purchaser. The remedy which the statute provides is ■ of a totally different character. So far from authorizing the lienee to seize the property covered by the lien, even after default, it expressly provides that such seizure shall be made by an officer of the law, under a warrant issued by another officer. In this respect the lien provided for by the statute differs very materially from a chattel mortgage. One who undertakes to enforce his rights under a lien which is the creature of a statute, must confine himself to the remedy provided by the statute. The right is derived solely from the statute, and the remedy resorted to must be that furnished by the statute. The attempt to invest au agricultural lien with the qualities of a chattel mortgage, is an attempt to interpolate into the statute provisions which the legislature has not seen fit to adopt, for, certainly, if that body had designed to give an agricultural lien the qualities of a chattel mortgage, it would have been very easy to have said so. On the contrary, however, the agreement provided for by the statute, which creates the lien, lacks one of the qualities of a chattel mortgage, which has been held (Green v. Jacobs, 5 S. C. 283,)
Another question has been raised by the grounds of appeal which, under the view we have taken, it is not absolutely necessary to decide, but as the point raised is one of importance it may be well for us to express our views. That question is
Again, it is argued that filing a paper in the clerk’s office does not necessarily convey the idea that it is to remain there, but that it may be marked filed and taken out of the office; and this view, it is urged, is supported by the prevalent practice in this state, to take papers from the clerk’s office after they have been marked filed therein. There is no evidence in this case of any such custom, and if we were to assume its existence, we do not feel at liberty to give it judicial sanction. When papers are placed on file in a public office, they become public records, open to the inspection of the public, under proper regulations; but if private individuals are at liberty to remove them whenever they see fit, they necessarily lose their character as public records. They are in the custody of the officer in whose office they are filed, and he is responsible for them. If he chooses to allow individuals to remove the originals rather than to require them to procure copies, that is a matter of mere favor and not of right,
Finally, it is argued that the presumption is that the clerk did his duty, and at all events the appellant should not suffer for the clerk’s default. There is no doubt that in the absence-of evidence to the contrary the presumption is that a public officer has done his duty, but here the proof shows the contrary, and there is no room for the presumption invoked. As to the other branch of the proposition, that is likewise disposed of by the evidence, which shows that it was by the appellant’s own act. and consent that the paper was removed from the office after it was indexed, and retained in his own custody. But even if it was the default of the clerk, it is difficult to see how that could affect McSween. If a party delivers a mortgage or other paper to the clerk to be recorded, and he neglects to do so, we can very readily understand how he might be made responsible for any damages occasioned by such a neglect of duty, but how an innocent third person could be made to suffer for such a neglect of duty on the part of a public officer it would be more difficult to-comprehend.
The judgment of the Circuit Court is affirmed.