Litchton and Barker vs. McDougald and others.

and received. Whether or not the corn was delivered, was a question of fact for the jury. Taking the whole testimony of Tharp, we think it clear, that the corn never was delivered. It was in defendant's crib, and on his premises. He never parted with the dominion over it. In the presence of Tharp, the witness, he not only asserted his property in it, but exercised acts of ownership over it. But admit that the title had passed to Biggers, the buyer, if Pace, the seller, would not surrender the corn, Biggers might either reclaim the corn by an action of trorer, (1 Car. & Payne, 593. 2 Bing. 527. 5 Maul. & Selw. 105. 9 Barn. & Cress. 59,) or he could, as he has done, bring a special action on the case for damages, and recover the market value of the corn at the time and place when and where it was to have deen delivered. 1 Car. & Payne, 635. 3 Wheat. 200. 6 Wheat. 109. 2 Barn. & Cress. 624. 2 Cranch, 298. 9 Barn. & Cress. 145. 9 Wend. 129. 4 Paige, 561. 4 Paige, 561. 7 Cowen, 681. 1 Peter's C. C. R. 85. Of course, as the corn had not been paid for, Biggers could only recover as damages the difference between the actual price contracted for and its market value on the 10th of November, 1845, at or near Piedmont, in Harris county, when and where the corn should have been delivered.

Let the judgment, therefore, of nonsuit be reversed; and the case reinstated.

No. 20.-LITCHTON & BARKER, plaintiffs in error, vs. D. McDoг. GALD, et al. defendants.

[1.] One creditor cannot attack the lien of another, until it comes in conflict with his own rights.

[2.] In a contest between attachments and ordinary suits, it is the judgment, and not the levy, which fixes the lien. And if the judgment, by ordinary process, be older than the attachment judgment, it takes precedence in the distribution of money arising from the sale of the defendant's property.

Motion to distribute money. In Muscogee Superior Court. Decided by Judge ALEXANDER, May Term, 1848.

Litchton and Barker vs. McDougald and others.

The facts are found in the decision of the Court.

THOMAS & DOWNING, for plaintiff in error, cited

Prince, 34, 426. Hotchkiss, 558. 3 Kelly, 173.

JONES, BENNING & JONES, for defendant.

By the Court.-LUMPKIN, J. delivering the opinion.

Money was brought into Court, arising from the sale of Benja min Herd's property. There were various judgments against the defendant; some by attachment, and others obtained by suit, in the ordinary way. Litchton & Barker, who were judgment creditors, by ordinary suit, moved to have the fund distributed rateably between them and the attachment judgments of the same date. But the presiding Judge refused to allow their motion, upon the ground that their judgment was not obtained before the attachment judgments.

Litchton & Barker then applied to set aside the execution in favor of Daniel McDougald, founded upon attachment, and older than theirs, upon various grounds set forth in the motion. But this application the Court refused to entertain, for the reason that the fi. fa. of McDougald was not before the Court, urging pay

ment.

Litchton & Barker insisted, lastly, upon a pro rata division of the money in hand, after setting apart enough to satisfy McDougald. This the Court disallowed. To all which rulings, the said Litchton and Barker, by their counsel, excepted.

[1] We think it very clear, that His Houor, Judge Alexander, was right in denying to the plaintiffs in error, the privilege of assailing McDougald's claim, before it interfered with their rights. It might be good against the defendant, if not third persons. And they had no right to attack it until it stood in their way.

[2] As to the first and third grounds in the bill of exceptions, they present really the same question. And it is this-whether a judgment obtained by ordinary process, is not entitled to share rateably with attachment judgments of the same date. We are of the opinion that this point is conclusively settled by McDougald vs. Barnard & Co. 3 Kelly, 169. The Court there held

Colley vs. Morgan.

that, "in contests between attachments and ordinary suits, it is as it was from 1799, the judgment and not the levy, which fixes the lien." p. 173.

Judgment reversed.

No. 21. GEORGE W. COLLEY, plaintiff in error, vs. WILLIAM MORGAN, defendant.

[1] A bond executed by a debtor, arrested by Ca.sa, to appear at Court, and take the benefit of the Act for the relief of Honest Debtors, though less than twice the amount of the arresting creditor's debt, is a valid bond, and binding on the parties.

[2.] Where the Sheriff arrested a defendant by virtue of a Ca.sa., and released him by taking bond for his appearance at Court, to take the benefit of the Act for the relief of Honest Debtors, in an amount less than twice the amount of the creditor's demand; the bond being taken in good faith by the sheriff: Held, that he was not guilty of a voluntary escape, but of a negligent escape, and might retake the defendant in Ca. sa., and surrender kim in Court, in discharge of his liability to an attachment for contempt under the Statute.

Rule against the former Sheriff. Baker Superior Court, before Judge WARREN, May Term, 1848.

A Capias ad satisfaciendum, sued out in the Court below, at the instance of the defendant in error, against one William Brockett, for the sum of one hundred and seventy-five dollars, besides interest and costs, was placed in the hands of the plaintiff in error as sheriff, to be by him executed and returned, as such sheriff. The ca. sa. was issued on the 22d day of December, 1847, and by the return of the plaintiff in error, appears to have been executed by him on the 4th day of January, 1848.

It further appears, that on the same day of the arrest, the defendant in ca. sa. Brockett, gave pond to the sheriff, Colley, of which the following is a copy:

Colley vs. Morgan.

GEORGIA, BAKER COUNTY

"Know all men by these presents, that we, William Brockett and John Montgomery, of the above county, do acknowledge our selves firmly bound unto William Morgan, in the just and full sum of three hundred dollars, to the true payment of which, we bind ourselves, our heirs, executors and administrators, firmly aud severally, sealed with our seals and dated, this January 4th, 1848. "The condition of the above bond or obligation is such, that whereas the above bound William Brockett, has been arrested by G. W. Colley, sheriff of said county, with a ca. sa, issued from the Superior Court of Baker county. Now, should the said William Brockett, personally appear at the next Superior Court of said county, and comply with the law to take the benefit of the Act for the relief of honest debtors, and abide by such proceedings as the Court may order against him in the above case, then this obligation to be void, else remain in full force and effect." W. BROCKETT. (L. s.) JOHN MONTGOMERY, (L. S.)

At the May term of the Court below, 1848, the defendant in error, being the plaintiff in ca. sa. moved a rule nisi against the plaintiff in error, as sheriff, reciting that he had arrested said defendant in ca. sa, under and by virtue thereof, and that said Brockett, had been permitted to escape and go at large, by the said sheriff, and requiring him to show cause why he should not be held and made liable for the amount due upon said ca. sa. and why he should not pay over the same to said plaintiff in ca. sa, or his attorney, for said escape, &c. Counsel for sheriff moved to discharge this rule, on the ground that he was not liable to be proceeded against in this summary way, which was overruled by the Court; to which sheriff excepted. In answer to the above rule nisi, the plaintiff in error showed, that he had arrested said Brockett, and took from him the bond herein before copied; and further, that the said Brockett had surrendered himself up in open Court, in obedience to the condition of said bond, and was then in Court, ready on his motion, to take the benefit of the insolvent laws, having filed his schedule in terms of the law, or to remain in custody until he should so do; or to give, instanter, a good and valid bond conditioned therefor. And further, that said bond hereinbefore copied, was taken and received by said sheriff in good faith, when said Brockett was arrested; and that

Colley vs. Morgan.

said Brockett was only permitted to go at large, upon his execution and delivery of said bond with the security thereto subscribed, unto the respondent, and the plaintiff in error therefore prayed, that the said rule against him might be discharged.

After argument of counsel, the Court below ruled the said showing insufficient, and ordered, that the said rule nisi should be made absolute, and ordered an attachment to issue against him as for contempt, to be discharged upon his payment of the amount of principal, interest and cost, due upon said ca. sa.

To which decision of the Court below, the counsel for the sheriff excepted upon the following grounds:

1st. Because, by the sheriff's shewing, it appeared to the Court, that he had discharged his duty as sheriff, and was guilty of no contempt of Court in the premises.

2d. Because, by the action of respondent as sheriff, he had by virtue of said ca. sa. produced the body of the defendant Brockett in Court, in compliance with the Statute.

3d. Because, by the action of the sheriff as disclosed by said rule nisi, no injury had been done to the plaintiff in ca. sa. but that he was in the same condition as if a legal bond had been taken, and that the spirit and intention of the law had been complied with.

4th. Because, by said answer to said rule nisi, said sheriff had acted in good faith, and was therefore guilty of no contempt, and was not, therefore, liable to be proceeded against in such summary way.

5th. Because there was no evidence before the Court contradicting the sheriff's answer, or that the plaintiff, or his attorney, or his agent, or any other person for him, had furnished to the sheriff such a bond, or any instructions thereunto, as would be satisfactory to him under the law, and the sheriff being no judicial officer, could not determine as to the validity of said bond, but could not be judged by his judgment, and this bond he be lieved in good faith, was sufficient.

6th. Because all the facts presented in said rule and answer, were matters properly belonging to the jury, and could only be passed upon and determined by the verdict of a jury, whether the sheriff was liable or not, and therefore plaintiff could not proceed against said sheriff in this summary way, but only on his bond as sheriff, or in an action at law for an escape.