
    
      James McLeish v. Nathaniel Tylee.
    
    The plaintiff being the assignee of the defendant under the insolvent debtor’s act, and the defendant refusing to yield the possession of the goods assigned, it was held that the plaintiff could maintain trover for the same, and was entitled to recover, subject to the lien of a previous mortgage upon the goods.
    
      Before the Recorder, in the City Court of Charleston, July Term, 1849.
    This was an action of trover for sundry articles of household furniture, particularly set forth and described in the declaration. The plea was not guilty. The plaintiff’s title to the property claimed, and his right to sustain this action, depended upon the following testimony: The plaintiff shewed the record of a judgment of M’Leish Tylee, writ 26th October, 184?, service acknowledged by defendant in person, plea put in by J. L. Wilson, defendant’s attorney, plea afterwards withdrawn, judgment20lh January, 1844, and fi. fa. to bind, ca. sa. issued 20th November, 1847, defendant arrested 24th Nov., 1847, (J. S. Jones security for the bounds;) 28th Dec. 1847, defendant filed his schedule, containing, among other things, the following clause : “ wearing apparel, also all his right, title and interest, in and to the furniture mortgaged on the 9th Oct. 1843, to John S Tylee, of New York, mortgage recorded in Secretary of State’s office, Charleston, S. C.” That the schedule was subsequently amended under and to the effect of the following order of the Court: “ordered that the schedule be amended by attaching to the same a list of the articles'of furniture mentioned in the mortgage referred to as therein mentioned, and that, in addition to the assignment of all his right, title and interest in and to the said articles subject to the said mortgage, he also assign his interest in and to all and every other such articles of household furniture now in possession of said debtor, belonging to him, (if any there be,) not subject to the mortgage of the said John Tylee, before referred to.” The assignment was executed by the defendant to the plaintiff, (as assignee,) on the 18th of May, 1848, and he was thereupon discharged under the insolvent debtor’s act.
    It. seemed to be conceded on both sides, that the articles sued for were those specifically mentioned in the schedule.— The plaintiff proved a demand by Joseph Samson, his duly authorized agent, upon the defendant to give up to him the possession of the articles named in the assignment, to which demand the defendant replied that the articles did not belong to him, and he could not give them up. Whereupon this action was brought.
    Here the case closed on the part of the plain (iff.
    The defendant’s counsel moved for a nonsuit, on the ground, principally, that upon this showing, the plaintiff could not maintain an action of trover against the defendant, inasmuch as the plaintiff claimed to divest the defendant of the possession, when the title through which he claimed showed the existence of title in another, by virtue of an existing mortgage, not shown to be satisfied, invalid, or in any way impeached.
    The plaintiff contended, that upon the facts shown and the law of the case, the mortgage (which was exhibited, and in evidence,) must be regarded as fraudulent and void, and the plaintiff, therefore, entitled to sustain his action. His Houor says: But it appeared to me that this ground was scarcely open to the plaintiff after accepting an assignment of the defendant’s interest, subject to the moitgage, and after the defendant's discharge under the Act, without that issue having been made previously to such discharge. At all events, upon the facts shewn in evidence, I did not consider any case made to the jury on that point.
    Another ground, principally relied upon by the plaintiff, was that taken in the case of Porteous v. Sullivan, which decides that a creditor secured by a mortgage, (as other creditors,) is bound to prove by oath his debt to be bona fide at the time when his debtor takes the benefit of the insolvent debtor’s act; otherwise his lien will become forfeited. Of this there can be no doubt, as such is the express provision of the 4th section of the Act of 1759. But in the case of Porteous v. Sullivan, it appears to have been shewn expressly by the plaintiff, as a part of his case, that the creditor had not proved his debt before the Clerk, as required by the Act, and'hence, the mortgage being void, the plaintiff’s title under the assignment was complete. But this was not shewn in this case; on the contrary, I felt myself bound to presume, in the absence of any proof to the contrary, that the law had been complied with, and hence the mortgage still in full force. I would have permitted the plaintiff to have supplied the proof if he could have furnished it in this case, at the last moment. His not offering to do so, strengthened (in my mind) the legal presumption that the Act had been' complied with in that respect.
    It appeared to me, that taking the mortgage to be of force, the assignee could not sustain his action of trover, for the things mortgaged, either as against the mortgagee or mortgagor in possession, or any one holding under the mortgage, but that the proper course was to apply to the Court for an order of sale under the concluding part of the 4th sec. of the Act of 1759, which declares in substance that if the estate so conveyed shall be more than sufficient to satisfy the debt bona fide due, the Court is required to order the trustees, (or assignees) to sell such estate, and that the money arising therefrom, shall be first applied to satisfy the debt, and the balance paid over, to be applied according to the assignment. Any other course, it seemed to me, would, involve a clashing of jurisdictions; would either take away entirely from the Court what was committed to it under the A.ct. or give to the jury an indirect but effective appeal from the action of the Judge in the premises. I thought the plaintiff had not shown any legal ground upon which to sustain the present action, and granted the motion for nonsuit.
    The plaintiff moved to set aside the nonsuit, upon the following grounds:
    1. Because the plaintiff, being the assignee under the insolvent debtor’s Act, was entitled to the possession of the property assigned, subject to all legal liens, and could, there-i fore, maintain trover for the same against the insolvent debtor.
    , 2. Because it was error of law on the part of the Recorder to grant the motion for a nonsuit.
    
      Brown & Porter, for the motion.
    
      D. F. Richardson, contra.
   Curia, per O’Neall, J.

In this case, it seems to me that upon the plainest principles, the plaintiff is entitled to recover ; his action is against the very party who assigned, and who is still in possession of the goods. He cannot object, that the plaintiff is not entitled to recover damages against him for the conversion of goods, the possession of which he had the right to demand from him. It is in all resnects the same case as if the defendant had sold, and by writing had conveyed the goods to the plaintiff; in such a case no one would doubt the plaintiff was entitled to recover. Other matters altogether foreign to the question, were mixed up with the case before the Recorder; and in that way his mind was turned off from the plain point, on which we place the case.

In deciding that the plaintiff is entitled to recover, it by no means follows that he is entitled to recover the full value of the goods. They were conveyed to him subject to the mortgage to John Tylee, and if he fails to shew that that mortgage ought not to have legal effect, he can only be entitled to recover so much of the value of the goods as may be left after satisfying it, or if the goods should not be more than enough to satisfy it, then he could only recover nominal damages.

The motion is granted.

Richardson, Evans and Wardlaw, JJ., concurred.

Motion granted.  