Dawson Fraser. count was opened between Pourie and Dawson and the de- Pourie and fendant, at the instance and request of Pourie, the factor of Fraser; and here he said, a very important question presented itself to the view of the court; had he any authority to open this account with the house of Pourie and Dawson? It was not pretended on the trial, nor is now, that he had any express authority so to do. Will then his acting as a factor in the sale and disposal of rice, or other produce of the country, give this authority to a factor? He was bold to say, it would not; and it would be a very mischievous doctrine if it did. The law relating to principals and factors would warrant no such thing, unless some special power was given for that purpose. The credit of the planters in this country, it was well known, stood very high; and to permit factors to speculate upon that credit as they pleased, while they pocketed the money of their employers, would indeed prostrate the interests of the planters at the feet of their agents, the factors. That what was called a subsequent ratification in this case, the omission to credit this account when the settlement took place, and the bond was given for the balance of the proceeds of the rice Pourie had sold; that appears to be a mistake or an omission in the hurry of business, which his client was willing and ready to rectify at any time, by giving credit on the bond for that amount; be that however as it may, Pourie and Dawson had nothing to do with it, as they were no parties to the transaction. By the Court. Where a factor is authorized generally to transact all the business of a planter, as to buying and selling for the use and account of a plantation, in such case the act of the factor will bind his principal. But if a factor is employed to sell rice or other produce, and to send goods to his principal, he cannot bind him by taking up goods for his principal, and the merchant who trusts him must look to the factor for his money. If, however, a planter was by any subsequent act to ratify such a contract, it would be a strong presumptive evidence Dawson V. Fraser. Pourie and that he had been so authorized to make it, and would be binding on the principal; but the omission or mistake in an item in the settlement of accounts between the factor and his principal, will not amount to any such ratification of a contract with a third person. Let the rule for a new trial be discharged. Present, GRIMKE, BAY, JOHNSON and TREZEVANT. Charleston District, 1800. It is the writ of attach ment, and not WILLIAM STEPHEN against WILLIAMS THAYER. CASE on attachment. Upon a rule on the sheriff, to shew cause why he should the judgment not pay over monies, arising from the sale of a house and obtained on it, which gives lot, to the plaintiff in attachment, as the first attaching the lien on the absent creditor. debtor's gon s, &c. If the de in elaration attachment is filed after the expiration of two months, but before the end of the year and day, Present, GRIMKE, WATIES, BAY, JOHNSON and TREZE VANT. This was a case which turned upon the construction of the attachment act. Mr. Taylor, as attorney for the plainit will pretiff in this suit, moved that the money arising from the sale serve the first attaching cre- of this house and lot, might be paid over to his client as the ditor's lien unless the se- first attaching creditor. cond attach ing creditor shall rule the first one to declare and in Mr. Darrell, attorney for one John Rogers, who was a second attaching creditor, claimed this money, and moved suit him. that it might be paid over to his client, as having the first attachment, in lieu of an old one lost or mislaid, is tantamount to an order for further time to declare. Upon looking over the proceedings, it appeared that Mr. Taylor had issued out his attachment on the 6th day of July, 1796, but as the sheriff had mislaid the writ of attachment, the declaration was not filed within two months after the issuing of the writ. On the 22d of June, 1797, Mr. Taylor obtained an order for the substitution of a new writ of attachment, in lieu of the old one lost or mislaid; on the 20th of July, 1797, he filed his declaration; on the 31st of July, 1798, he obtained an order for judgment; on the 2d of August, 1798, he executed his writ of inquiry, and on the 20th of August, 1798, he got his final judgment signed. Mr. Darrell issued his writ on the 6th of October, 1796, filed his declaration the 31st of January, 1797, obtained an order for judgment on the 5th of February, 1798, and executed his writ of inquiry, and signed his judgment on the 26th of March, 1798, nearly five months before Mr. Taylor's final judgment; so that the great question in this case was, who should have the preference, the first attaching creditor, or the first judgment creditor. On the part of Rogers, the second attaching creditor, it was contended, that the main object of the attachment act, and the attaching a part of the absent debtor's goods, &c. was to make the absent debtor a party in court, so as to bind him with a judgment, as in ordinary and common cases, where a copy of a writ or process was left at the defendant's most notorious place of abode; but that the judgment when obtained, operated by common law principles, and bound the property real and personal of the absent debtor, and had all legal priorities in the same manner as if defendant had been served personally with the original process, or as if it had been left at his usual residence. It was admitted, that the first attaching creditor would have had the preference if he had been diligent and obtained his first judgment; but as he did not, but lay by, it left an opening for Mr. Rogers to step in and get the first judgment; by which means Stephen lost, and Rogers gained the priority. Stephen Thayer. Stephen Thayer. That Stephen should have filed his declaration within two months after the return of the writ, which was on the third Tuesday in August next after it was issued; that if the sheriff did not return the writ, he should have been ruled to that purpose, and if on being called on, he had shewed for cause that it was lost or mislaid, he might then have got an order of substitution as well as in June, 1797, which was such a neglect or omission as forfeited his right to a preference. Mr. Moultrie claimed the money for his client, Mr. Stephen, the first attaching creditor, on the ground that this was not a common law right, but one expressly given by the statute, which was bottomed on the civil law; the proceedings were in rem and not ad personam; that the main end and design of it was not so much to bind the person of the absent debtor, and to make him liable, as to get possession of his goods and chattels to satisfy the demand of the plaintiff. The very title of the act, and all the clauses of it, were predicated upon this idea. The act at the first blush, presumes that the defendant is absent and out of the state, so that a common law process could not be served upon him, but that he had goods and chattels, rights and credits within its limits sufficient to satisfy the demand. It was therefore to make these liable in the absence of the defendant that the act was framed, and every clause of it is so constructed, as to answer the ends contemplated. The first clause of the act is express and positive; it declares that the attaching of any part of the absent debtor's goods and chattels, &c. &c. in the name of the whole, shall secure the whole, and make it liable in law, to answer any judgment which should be recovered upon such process; this, he contended, was a statutory assignment, or transfer to all intents and purposes, as effectually in law as if the defendant himself had made a formal assignment under hand and seal, or given a mortgage of the property to secure the debt. It was much more extensive in its operation than any judgment or execution, as the latter can only extend to tangible property which the sheriff could seize and sell, but this statutory transfer under the act, gives the plaintiff in attachment a right to moneys in the hands of third persons, and to bonds, notes, book debts, and all other kinds of choses in action which belong to the absent debtor. It also compels a discovery on oath, of all such debts, dues and demands from third persons, as are due and owing to the absent debtor. It likewise authorizes the attaching creditor, to sue for, recover and receive all such moneys as are due and owing to the absent debtor, and to give receipts and acquittances for the same, which are de clared to be binding and conclusive against all parties whatever; no assignment, therefore, he said, could be more conclusive or extensive than this created by this act, yet none of them so far depended on the judgment. This act likewise authorizes the sheriff to seize and take into his power all the tangible property of the absent debtor, and appraise and sell the same, and pay the proceeds into the hands of the plaintiff in attachment, and this also without any judgment; all which extensive and operative clauses in this act, he said, prove most manifestly beyond all contradiction, that it is the issuing out and lodging of this attachment in the hands of the sheriff which creates and establishes this extensive lien on the goods and chattels, rights and credits of the absent debtor; because all this is done under the different clauses of the act, long before any judgment oftentimes can be obtained against the absent debtor. Indeed, the end and design of getting final judgment in an attachment case, was more for preventing fraudulent demands against an absent debtor, than for any other purpose whatever; because the act requires that such debts and demands shall be proved to the satisfaction of a jury by the ordinary rules of evidence, and that after a notice of a year and a day to defendant to come in and plead to the suit, in order to prevent surprise in establishing a demand against the absent debtor; but this judgment seems intended only to liquidate and establish the amount of the plaintiff's deniand, but not to give him a right to the absent debtor's effects, Stephen V. Thayer. |