Page:United States Reports, Volume 1.djvu/462

Rh 

1789.

“ 1784. At the time of rendering the Judgment aforefaid, the faid

“ John Levinz was feized of the aforefaid lands in fee, and fo continued

“ until the fame were fold under the fame Judgment, by

“ the faid William Will, as Sheriff of the county, in whole hands

“ the money remains.

“ The queftion fubmitted to the Court is, whether the faid Benjamin

“ Hooton, or the faid John M‘Farland, is entitled to receive

“ the money from the Sheriff?

The cafe was argued at the laft term, by Lewis, for the Plaintiff, and Ingerʃol, for the Defendant, when two queftions were made ; –– 1ft, Whether Hooton's Judgment related to the firft day of the term, fo as to exclude the Domeʃtic Attachment, for want of the regular continuances, was not out of Court?

Lewis contended, 1ft, That the Act of Affembly, and Engliʃh ftatute, with refpect to docketing Judgments, extend only in favour of fubfequent purchafors for a valuable confideration, 1State Laws 463. 3''Black. Comm.'' 420. 14 ''Vin.tit. Judgment'' 616. Cro.C. Heil. 72. S.C. under the Bankrupt Laws there is a relation to the time of the act of bankruptcy ; and yet the legal relation of a judgment to the firft day of the term, was held fufficient to defeat the claim of the Commiffioners. Sid. 371. Skin. 257.

2dly, That from the cafe ftated, it does not appear that Auditors have been appointed under the Domeʃtic Attachment. This, however, is not fo material, as that there is no continuance of the caufe. There is not, indeed, any law which directs a Judgment in a Domeʃtic Attachment ; but fince on the report of the Auditors, the bufinefs is to be fettled, till that is done, is neceffary to continue the action ; as in the cafes of a writ of Partition, and an action of account. See 1 State Laws 121.

Ingerʃol, on the firʃt point, adverted to the opinion of the Court of Common Pleas, (fee ant.187) and urged that the Domeʃtic Attachment Law, 1 State Laws 126. was to be confidered as applying to an infolvent debtor, the great outlines of law with refpect to a bankrupt. From the moment that the attachment is in the hands of the Sheriff, the property ceafes to be the Defendant's, and muft be difpofed of agreably to the Act. See Comb. 33. Skin. Under a commiffion of Bankrupts, which is thus analogous to the Domeʃtic Attachment, creditors are to be confidered as purchafors, and nothing can exclude a general diftribution, but an execution executed. See Co. Bank.Law. Fictions, indeed, ought never to be allowed to work an injury ; but if the technical relation of a Judgment to the firft day of the term, were fuffered in a cafe of this nature, all the expence and trouble of a Domeʃtic Attachment would be rendered with oppreffive and nugatory. 2d. With See the cafe,ant. 187, where, by an error of the Prefs, it is faid to be a Foreign, inftead of a Domeʃic attachment. The opinion given in the court of Common Pleas, was only the firft point made by the Plaintiff's counfel, (merely I believe, at the time of the argument) but no judgment was regularly pronounced.