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MAY 1804

Salmon
VS

Yates

Hollingsworth, for the plaintiff. This is an application to the discretion of the court. All judginents, at the time they are entered, are by an agreement of the counsel long practiced and used in this court, subject to a certain stay, viz. judgments entered in May, until the 1st of August then next, and those entered in October until the 1st of January following. In this case the usual stay was entered until the 1st of August 1802, after which notes were given in payment, and an agreement entered into, that executions were further to be stayed, and only to be issued on default of payment of the notes. The reason why a scire facias issues, is to give an opportunity to the party to shew a payment; no such reason existed in this case, as the stay was altogether an indulgence to the defendant, and granted at his own request. It is competent for the parties to extend the stay, and the act of October 1778, ch. 21, does not forbid a private agreement to that effect. The only irregularity, if any, is in not entering the agreement for the extension of the stay on the record. The writs of fieri facias were levied long before Yates became a bankrupt, or before a commission had issued against him, and no other person was interested at the time the agreement was signed, or at the time the writs of fieri facias issued and were laid. It is therefore not interfering with the rights of third persons. The court are bound to take notice of the terms of the judgment which the parties may have entered into.

S. Chase, Junr. in reply. The plaintiff has not pursued the mode pointed out by the law for issuing his executions. In 6 Mod. 288, it is a positive rule of law that the judgment is considered as satisfied after a year and a day, and that the party is put to his scire facias. The defendant was taken in execution, on another execution, on the 5th of August 1903, and he was in actual confinement under it. Upon that confinement he was declared a bankrupt. The bankruptcy relates to the commitment, viz. the 5th August 180S, which was before the issuing the present exe

Salmon

15.

Yates

cutions. The assignees therefore became interested, MAY 1804. and Major Fates had no control, and had no authority to consent to the issuing the executions, or to enter into the agreement which, though dated before, was not in point of fact entered into until the 14th of September 1803. The law is express that the stay of execution must be entered on the docket at the time the judgment is entered; and if the agreement had been made at any time after the judgment, it could not avail the plaintiff. Frauds may be practiced, a judgment may be satisfied although not entered on the docket, and by a pretended agreement an execution may be taken out years after.

CHASE, Ch. J. The act of October 1778, ch. 21, s. 7, is very plain and explicit, that the stay of execution must be entered on the docket at the time the judgment is entered, in order to warrant an execution being issued thereon, without a scire facias, after a year and a day have expired. In this case the stays not having been so entered, the executions could not legally issue, and therefore the court quash the writs of fieri facias and returns, with costs.

GENERAL COURT, MAY TERM, 1804.

WILSON US. Starr.

HABEAS CORPUS cum causa to Baltimore county The appearance

court.

a writ

Hollingsworth, for the plaintiff, moved for of procedendo, stating that in this case there was an attachment on warrant which was laid in the hands

of the defendant to an attachment, at the trial term, and his giving special bail after

the garnishee has pleaded, and issue has been joined

on such plea, dissolves the attachment, and the defendant is not

bound by the plea

of a garnishee, who appeared to the attachment and pleaded non assumpsit and nulla bona, and issues were but may plead de

joined. That at the trial court the dant appeared and gave special bail;

original defen-
the attachment

was dissolved, and the present writ of habeas corpus produced and allowed. He contended, that a plea had

of the garnishee,

nove

MAY 1804 been pleaded by the garnishee, for the original de

Wilson

VS

Starr

fendant, viz non assumpsit, and issue joined thereon; that the dissolution of the attachment did not strike out that issue or the plea. And that issue having been joined a writ of habeas corpus could not be allowed. Therefore, that a writ of procedendo ought to be awarded.

CHASE, Ch. J. This is to be considered a new case against the original defendant. Upon his appearance, and giving special bail, by which the attachment was dissolved, he had a right to plead for himself, and the plea put in by the garnishee could not affect him.

PROCEDENDO REFUSED.

Conveyances

made to particular

GENERAL COURT, MAY TERM, 1804.

MANRO US. GITTINGS and SMITH.

ISSUES sent by the Chancellor to be tried by a jury

creditors in con- under the direction of this court:

templation of in

solvency-Held to be undue & improper preferences,"

under the act of

the benefit of sun

dry insolvent deb

tors

-

1. Whether or not the said Gittings & Smith, with

and therefore void in two years before the 19th day of December 1800, 1800, ch 44, for id convey to William Taylor, William P. Matthews, Thomas and Samuel Hollingsworth, and James Gittings, jun. the whole or the greater part of their most valuable property with a fraudulent intent, thereby to give an undue and improper preference to the said grantees, or to the said grantees and other creditors?

2. Whether or not the said Gittings & Smith, within the time aforesaid, did convey and transfer to the said William Taylor, a vessel, purchased by them from John Chalmers, to secure the said Taylor from damage or loss on certain notes indorsed by him for them before their purchase of the said vessel, with a fraudulent intent by the said conveyance to give an undue and improper preference to the said Taylor?

3. Whether or not the said Gittings & Smith, and within the time aforesaid, after they had stopped pay

MAY 1804.

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ment, had a considerable quantity of merchandize belonging to or consigned to them, which arrived at the port of Baltimore, and delivered the same to Jo- Gitsings & Smith seph P. Smith, brother of the said Smith the defendant, or permitted him to take and receive the same with a fraudulent intent, thereby to give an undue and improper preference to the said Joseph P. Smith, or any other person?

On the trial of the said issues, or any of them, the chancellor requested the honourable the judges of the general court, on application of either party, to instruct the jury what ought to be considered an undue and improper preference.

The following statement of facts was agreed to by the counsel for the parties, viz. That the defendants, during the years 1798, 1799, and until the 20th of January 1800, were merchants and partners, trading in Baltimore, by the name and firm of Giltings and Smith; that they contracted large debts, were possessed of a number of ships, and of goods and other property to a large amount, and were in good credit until the 29th of December 1799, on which day they acknowledged, in a letter to the father of Smith, their apprehensions of being unable to pay their debts, and from that day until the 20th of January 1800, when their insolvency was publickly known, made the several conveyances (copies of which are produced in court,) with the intention of giving preference to the creditors mentioned in the said convey ances, if there should be a deficiency in their property to pay the whole of their said debtors. That all the parties to the said conveyances, at the time of executing them, did believe that the defendants were unable wholly to pay their debts, and that the said conveyances transferred the whole of the property owned by the defendants, as partners, at the time of their failure, and that they owned no other property but what is mentioned in their schedule. That the account of John Chalmers, one of the unpreferred creditors, as to dates, (2d December 1799,) amount of notes, ($6200,) and time of payment, ($1900 at 90 days, $1900 at

Manro

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MAY 1804. 120 days, $1900 at 6 months, and $500 in cash,) is correct, and the vessel purchased of him is the same Gittings & Smith. Which was afterwards transferred to William Taylor and William P. Matthews on the 13th of January 1800. That the defendants on, the 10th of December 1799, purchased of William Winchester 100 barrels of flour on a credit of 150 days, and about the same time another quantity of Beal Owings on a like credit, which composed a part of the cargo of the brig Ann afterwards transferred to Thomas and Samuel Hollingsworth. That the defendants purchased of Thomas and Samuel Hollingsworth coffee and flour to the amount of $17,153, and gave their four notes for the payment thereof, bearing date the 30th of October 1799, at 3, 4, 5, and 6 months. That the conveyance to Thomas and Samuel Hollingsworth was made to secure the payment, or in a satisfaction for the above notes, and the rest of their account as furnished; and that the sum of $10,000 cash was paid to the said defendants by the said Thomas and Samuel Hollingsworth, to enable the said defendants to go on with their business. That the conveyances to William Taylor and William P. Matthews, of the 13th and 20th January 1800, were made to secure the payment of certain promissory negotiable notes, bills of exchange, and custom house bonds, which the said Taylor and Matthews had signed and endorsed for the accommodation of the defendants at their request, and without having received any value therefor: which notes, bills and bonds, were not due at the time of executing the said conveyances, but have since been paid by the said Taylor and Matthews. That the statement of losses on the property conveyed to the said Taylor and Matthews, amounting to $ 90,687 is correct. That The Dispatch and The Ranger, were attached in Great Britain, and never came to the possession of James Gittings, Junr. or John Feiser, to whom they were consigned in trust. And that the said conveyance has been wholly inoperative. That the accounts of William Taylor and William P. Matthews, as to the debts due to them, are correct, viz.

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