HOOTON verʃus WILL.
D
OMESTIC ATTACHMENT.––This caufe being removed by Certiorari from the Common Pleas, now came before the Court on the following Cafe, ftated for their opinion:"The Term of September, in the Common Pleas for the county of
“ Philadelphia, in the year of our Lord 1782, began on the 4th day
“ of September, and on the 16th day of September, in the fame year,
“ Judgment was entered in the Court aforefaid, in an action then
“ depending at the fuit of the Plaintiff, above named, againft John
“ Levinz, which action had been brought to the term of June, in
“ the fame year. On the 5th day of the fame month of September,
“ a Domeʃtic Attachment iffued out of the fame Court, at the fuit of
“ John M‘Farland againft the faid John Levinz, and was ferved on
“ the lands of the Defendant on the fame day at 11 o'clock in the
“ morning. No auditors were ever appointed, nor any other
“ proceedings had, under the faid attachment, until a fimilar cafe was
“ftate for the opinion of the Court of Common Pleas for the county
“aforefaid, the 9th of November, in the year of our Lord
“ 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. 3Black. 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.
1789.
2d. With refpect to the ʃecond point, the Act of Affembly, as to the appointment of auditors, is merely directory ; and continuances are matters of mere form, which may be entered at any time; fo are matters of mere form, which may be entered at any time; fo that the Court will even prefume it to have been done. 2Har.C.P. 312. 1Stra. 139. 2Barn.Not. 172. 1Stra. 136. 1 Sid. 53. 60.–– See 18 Vin.tit. Purchaʃor. Preced. in Chan. 478. Schloʃʃer vs. Leʃher ant. 411.
Lewis, in reply, ftill urged, that the Act for docketing Judgments, and recording Deeds, were only made in favor of purchafors ; and although, generally fpeaking, every man who does not take by defcent, is called in law, a purchafor, he contended, that the object of thofe acts was not of that great import, but merely to fecure perfons who had paid an actual and immediate confideration for the premifes, and not to aid thofe who, by procefs of law, were endeavouring to recover an antecedent debt, which was the cafe in a domeftic attachment. The attachment when levied is binding between the parties; but it does not affect the legal relation of a Judgment obtained by another perfon ; and the cafe cited from Co. B.L. is that of an execution taken out, but not levied. See Prec. in Chan. 478.
With refpect to the omiffion of continuances, he anfwered, that if there was any thing to enter them from, and day has been given to the Defendant from time to time, then the doctrine and authorities of the adverfe Counfel would apply. But, he infifted, that where day was given to the Defendant, and, afterwards, nothing was done in the caufe, the continuances could not be arbitrarily entered in the manner fuggefted by the Defendant's Counfel.
After confideration, the chief justice delivered the opinion of the Court, in which he declared, that he and his brethren were unanimoufly of opinion with the Plaintiff, on the cafe ftated ; and directed Judgment to be entered accordingly.