
    
      S. L. Maddox v. Elisha Williamson.
    
    The sheriff, after the assignment of a judgment, sold under execution the property covered thereby, and appropriated a part of the proceeds as directed by the assignee; retaining the balance under rule, subject to litigation. The assignor of the judgment, who had afterwards confessed ajudgmentto the plaintiff on debts older than the assignment, was subsequently arrested by him, and enlarged for the bounds by the Sheriff, (possibly on an insufficient bond, which was, however, assigned to the plaintiff.) The assignor broke the bounds and left the State — on the trial of an issue made up to try the validity of the assignment, the Sheriff was held to be a competent witness for the plaintiff.
    
      Before O’Neall, J. at Laurens, July, extra Term, 1848.
    This was an issue, made up under an order of the Court of Common Pleas of Laurens district, made at a previous term, to try the validity of an assignment by John E. Williamson to Elisha Williamson, of a large judgment, confessed by Reuben Williamson, in favor of John E. Williamson, for $4, 437 68 cts. ‘with interest from 5th November, 1840, credited 9th December, 1840, with $900, and 1st Oct. 1841, with $81952 cents. It was assigned 14th of the same month, “for value received, but without any liability as assignor.” The plaintiff was a judgment creditor of John E. Williamson, by confession of the 16th October, 1841; the debts on which the confession was founded were much older than the assignment. The sheriff, Cunningham Kennedy, Esq. sold, after the assignment, under execution of John E. Williamson v. Reuben Williamson, the property of the latter, and appropriated the greater part of the proceeds as directed by the as-signee, leaving in the sheriff’s hands a balance of $727 94.
    At the sales made by the sheriff, the defendant was a purchaser to this amount; the sheriff for his indemnity took the defendant Elisha Williamson’s note as security. He did not pay over the money to him, for he was notified to retain the fund in his hands until this litigation was settled. Indeed he was ruled and sued by this plaintiff, as will be seen 2d Rich. 102. On the 15th of June, 1842, this plaintiff sued out a ca sa against John E. Williamson, under which Kennedy, then sheriff, arrested him on the 6th of September, following. He gave bond, with one Latimore, for the bounds, on the 7th. This bond was sent, at the request of Latimore, after his execution of it, with the deputy sheriff, who had John E. in custody, to E. Williamson, the defendant, to obtain his execution; he did not, however, execute it. John E. was enlarged for the bounds by the sheriff, who regarded Latimore as sufficient security. John E. broke the bounds and left the State. The bond was assigned to the plaintiff, 23d November, 1842; a writ was issued on the same day, which was afterwards discontinued.
    This statement is sufficient to explain the two first grounds of appeal. Cunningham Kennedy, the former sheriff, was offered as a witness by the plaintiff, and objected to by the defendant on the ground of interest. The Court ruled that he had no such certain and direct interest, in the event of this suit, as rendered him incompetent; the most which could be urged against him was, that by possibility he might be liable to the plaintiff, if he were driven to rely on the prison bounds bond, and Latimore should be insolvent. This was too remote an interest to make him incompetent. As to the statute of limitations and the implied satisfaction of the plaintiff’s debt from accepting the prison bounds bond, in this issue, it had nothing to do with either; the inquiry simply was Avhether the assignment was fraudulent. If it were so found, it did not preclude the defendant from urging these objections, if there was any thing in them, when the claim came to be made by the plaintiff for.the money. But to give the defendant the full benefit of these his legal grounds of defence, the jury Avere told the statute of limitations, as to the sum of $727 94 cts. which Avas the fund in dispute, could not avail the defendant, for that sum was in law in the hands of the sheriff. As to the prison bounds bond, that could not avail the defendant, for no satisfaction in fact had resulted from the ca sa, or it. If it had passed into a judgment in favor of the plaintiff, then it might have presented another question; but not being pursued, it was now a mere speculation Avhether the plaintiff could ever be benefitted. The defendant was another creditor at most, and to oust the plaintiff’s claim to be paid out of their debtor’s funds, he ought to show a clear case of actual or legal satisfaction. Here, too, if the fund in the sheriff’s hands be applicable to the plaintiff’s debt, his judgment Avas satisfied before the ca sa issued. The insolvency of John E. Willianson, long anterior to assignment, Avas abundantly shewn.
    There was no proof of any money paid for the assignment when it was made. The struggle of the defendant was to show that he was the surety, and paid debts for John E. to a sum beyond the sum realized on the judgment, from the sale of Reuben’s property. He proved a sum of $1,716 98 cts., exclusive of interest. But to this it was replied, he owed. John E. a much larger sum : and there certainly Avere facts from Avhich the jury might so conclude. John E. and Reuben had been joint oAvners of a tract of land bought of Col. Johnson. When they ceased to do business, John E. sold to Reuben, and Reuben soon after, to defendant, for eleven dollars per acre; the tract contained .600 acres, making a total of $6,600. So, too, they had owned a woman slave named Rose and her children; the defendant bought her, and sold ' her for $650. All the witnesses agreed that the defendant could not have paid any such sums; his income, they said, was not more than enough to support his family. There were many facts relied upon to show the actual concurrence of the defendant in the attempt of John E. Williamson to defraud his creditors.
    The case was fully and most carefully explained to a very intelligent jury, who found the assignment to be fraudulent.
    The defendant appealed, and moved for a new trial.
    1. Because C. M. Kennedy, an incompetent witness, was allowed to give evidence for the plaintiff.
    2. Because the Court erred in holding that the plaintiff was not precluded from testing the validity of the assignment either by accepting the prison bounds bond and bringing suit thereon, or by the siatute of limitations; although the defendant had been in possession of the funds in dispute, for more than four years before the plaintiff instituted proceedings to set aside the assignment.
    3. Because the assignment was bona fide, and the verdict of the jury contrary to law and evidence.
    
      Irby and Sullivan, for the motion.
    
      Young and Perry, contra.
   O’Neall, J.

delivered the opinion of the Court.

This Court concurs with the Judge below, in the opinion which he expressed on the circuit, that neither the statute of limitations nor the implied satisfaction of the plaintiff’s debt from accepting the prisoii bounds bond, could preclude the inquiry, in the issue ordered, and on trial, whether the assignment was or was not fraudulent. It is therefore unnecessary to express an opinion upon either.

That the ex-sheriff Kennedy was competent is perfectly plain, when the case is properly understood. The inquiry here is not now whether Maddox shall receive from him the money in his hands. It is whether an assignment of the judgment against Reuben Williamson to the defendant be fraudulent. If it be, still the plaintiff may not be entitled to receive the money. It may turn out he is paid, in fact or in law. If this should be the case, other creditors may get the money. The ex-sheriff may, nowithstanding this verdict, still be liable to the plaintiff, if the surety to the prison bounds bond be not good ; so, too, he (ex-sheriff Kennedy) if the plaintiff’s debt should turn out to be paid in fact or law, will never receive any commissions on the plaintiff’s judgment, if indeed, for paying over under rule the money in his hands (not collected under execution) he could be entitled to commissions, which several members of the Court think he could not be.

t This explanation shews, that whatever interest the witness (ex-sheriff Kennedy) may have, is remote and contingent, and is not enough to render him incompetent; The other grounds are sufficiently disposed of by the report.

The motion is dismissed.

Richardson, J. — Evans, J. — Wardlaw, J. — and Withers, J. — concurred.

Motion refused.  