Puslapio vaizdai

under the foregoing act, as if they had actually absconded out of the state.

14 Section. Insolvent debtors' law. By an act for amending the above act, land, leasehold estates and chattels real are liable to be attached &c. and the whole are made responsible for any torts trespass or injury done by absentee, as well as for debts due by him &c. act passed 12th March 1783.

This act further amended. See 5th 6th and 7th clauses of county court law passed in 1785, also by an act passed in February 1788, giving same power to district courts as are given to county courts and county justices.

Court of Common Pleas.

CHARLESTON October, 1795.

Callahan v. Hallowell.

Lenox v. Same.

ATTACHMENTS. The first attachment lodged in the sheriff's office is entitled to a preference.

All returns on the part of the corporation, to be made by the Intendant under corporation seal; and not on oath. THESE

'HESE were two cases on the attachment act against the

effects of the absent debtor, in a store he had rented from the corporation.

And the point submitted to the court was, which of these defendants should have the preference.

It was admitted that Callahan's attachment was lodged in the sheriff's office about one minute before Lenox's, but that the sheriff's officer served a copy of Lenox's attachment on Mr. 11"Call the city treasurer, who then had the charge of the

store on behalf of the corporation before Callahan's was served, and the point was, which of the parties should have the preference; and for that purpose the officers of the corporation wished for the opinion of the court, in order that the return to the writs of attachment might be made accordingly.

The court upon consultation was of opinion that the sheriffs office being a public office, and the place where all writs and processes are entered before service, that the first attachment entered there ought to have the first lien on the goods, and that it was the duty of the sheriff to serve that first; otherwise it might be in the power of the sheriff, to vary the right of the parties, as he pleased, by serving any one he thought proper first.

Where priority of action becomes essential, the particular day must be shown, and although the law in general allows of no fractions in days, yet it admits it, where it is necessary to distinguish who has the priority, as in qui tam actions the very hour may

be shown. 3 Burr. 1426. If then the very hour may be shown, there is no drawing the line but by priority, the very minute may be shown upon the same principle, and that must govern; and the writ is considered as the commencement of the suit, and the delivery to the sheriff, the time of commencement. 3 Burr. 1421. Time being therefore in its nature divisible from years down to days and minutes, a minute will give a priority as essentially in point of time as a year or a day. They were therefore of opinion that Callahan had the preference.

N. B. Some of the gentlemen of the bar seemed to think this determination of great consequence to the practice of the court, and therefore wished it to have a more solemn argument; to which the court most readily assented, but it was never after brought forward.

Mr. Holmes, the intendant of the city of Charleston then suggested to the court, that doubts had arisen about the mode and manner in which these kinds of returns ought to be made on behalf of the corporation, suggesting at the same time that the city had a claim on the goods attached for rent.

Whereupon the court was of opinion, that all returns whatever on behalf of the corporation, ought to be made by the intendant, who is at the head of it; under the corporation seal; and that as the city seal proved itself, an oath was unnecessary, as a corporate body could not take an oath, and that being in possession they had a right to retain the goods for rent, the remainder to be sold for the attaching creditors according to priority.

Justices present,

Burke, Waties, Bay.*


The Laws of Maryland relative to Bonds. "HE rate of interest on pecuniary loans established by law

in this state is six per cent. Where the loan is of tobacco, wares, merchandizes or other commodities, and it is to be repaid in tobacco or other commodities, eight per cent may be taken. All bonds, contracts and assurances whatsoever, by which a greater interest is reserved than these rates are absolutely void, and in all cases, where such usury appears, no matter by what ways and means of corrupt bargain, whether by loan, exchange, chievezance, shift or interest, the party forfeits treble the value of the money or goods, one half” to our sovereign lady the queen," as the law anciently stood, but now to the state, the other to him who shall sue for it.

Bonds given in cases of appeal are for double the sum recovered by the judgment from which the appeal is made. The condition is that the party shall pursue the directions of the act respecting appeals, at the next court ensuing, before which the appeal or writ of error ought to be tried, and satisfy the plaintiff, in his damages and costs, if the judgment be affirmed.t

* From judge Bay's Reports, MS.

| Debt on an appeal bond to the court of appeals. Judgment in the county court of Baltimore on a verdict in an action of assault and battery, removed

In all cases of bonds or other agreements, for the conveyance of land, or of any other contract or agreement whatsoever, where the land or matter in dispute does not exceed the value of one hundred pounds or ten thousand pounds of tobacco, the county courts are invested with the same original equity jurisdiction for the purpose of compelling a specific performance, which the chancellor exercises in similar cases. If the party considers himself aggrieved by the decree of the county court, he may appeal to the chancellor, provided the demand exceed thirty pounds or three thousand pounds of tobacco. Where the party applies to the equity side of its jurisdiction, he must give a bond, in such sum as the court may approve, conditioned for the payment of whatever may appear to be due to the adverse party:

Executors and administrators are required to return a full account of their administration, within fifteen or, under permission from the court, eighteen calendar months from the date of the letters. At the expiration of this time any legatee or person entitled to the residue of the estate may sue for such legacy or residuary part, and recover out of the full estate, in the same manner as if there were no further disbursements for debts or charges to be made. The plaintiff however is obliged to give security to refund to the executor or administrator according to the statute 23 C. 2. chap. 10. Where it becomes necessary to bring an action on a testamentary bond, or bond for the faithful administration of an

to the general court by writ of error and affirmed with interest or damages : same in the court of appeals.

The plaintiff contended that every judgment carried interest, and that it was a breach of the writ of error bond, not to pay it.

The defendant denied both these positions. Judgment does not, at com mon law, ex consequente carry interest. The plaintiff ought to have brought an action of debt on the judgment for it. Courts of appeal may assess damages for interest or rather interest in damages.

Per curiam. No interest can be recoved except from the time of affirmance in the court of appeals. The non-payment of their judgment is a breach of the condition of this appeal bond and covered by the penalty of it. Vid. 2 T. R.51. Ex MSS. Judge Sprigg, decided May, 1804.

estate, the courts of law are required to proceed to judgment and execution, without taking notice of any injunction or other chancery proceeding to delay the case, unless the party obtains a final decree, or full hearing, or running out the process for the awarding of such a writ. But this law does not prevent any person from proceeding in chancery, if he conceive himself to be properly relievable in equity

It is not lawful for any creditor to bring suit upon testamentary bond for any debt or damages due from of recovered against a testator or intestate or his effects, until there has previously been issued a writ of capias ad respondendum upon which the sheriff has returned non est inventus, or a writ of fieri facias returned nulla bona. If such other apparent insolvency or insufficiency of the person or effects, as renders the creditor remediless by any other reasonable means, be made appear to the court, they will sustain the suit, without requiring either of these writs to be issued.

In order to prevent the practice of issuing executions for the whole penalties contained in certain bonds, it is provided that no judgment can be obtained upon a testamentary or sheriff's bond, until the creditor clearly makes appear to the court what his demand is; which is proved in this manner: the defendant must have notice, served upon him or left at his last place of abode, twenty days before the sitting of the court in which the plaintiff means to apply for an assessment of his demand. A copy of the demand attested by the clerk must be sent with the notice. The court being satisfied that this has been done will then assess the damages or appoint auditors to adjust the demand, and then give judgment in the usual manner; but an execution can only be issued for such sum as appears to be actually due, unless one of the parties pray a writ of inquiry. In such a case the writ is granted, and proceeded in according to the directions of the act of parliament 8 and 9 W. 3. entitled, an act for the better preventing frivolous and vexatious suits. The execution then issues only for such sum as may be found by the jury, with costs and interest until payment is made or tendered.

« AnkstesnisTęsti »