
    
      James Gardner vs. Harmon Hust.
    
    Where the service of an attachment is illegal, no lien is created on the property.
    Where the service of an attachment was declared illegal and void, and the defendant in the attachment afterwards confessed judgment thereon, and thereby waived the illegality of the service, held, that such waiver, on the part of the defendant, could not be regarded as relating hack to the original service, so as to defeat the lien of an attachment regularly served in the mean time.
    The taking of a higher security, if accepted as satisfaction, extinguishes a lower one for the same debt, and the law, it seems, will imply, in the absence of proof to the contrary, that the higher security was taken as satisfaction; but if it be made to appear that it was not taken as satisfaction, then it will be merely additional or cumulative security.
    If the fact, that the higher security is for the same debt, be proved by parol, then it may be shewn by parol that it was not taken as satisfaction.
    
      Where the sheriff acquires illegal possession of property under color of an attachment, he cannot charge the defendant in the attachment for keeping the property.
    
      Before Evans, J. at Edgefield, Spring Term, 1846.
    The report of his Honor, the presiding Judge, is as follows.
    “ This was a rule on the sheriff, to shew cause why certain money in his hands, arising from the sale of the defendant’s propertjr, should not be applied to this case. By the sheriff’s return, it appeared that he had sold about thirty negroes, and some horses, and after satisfying the older cases, there remained a balance of $612 43. This property of Hust had been seized in the possession of one W. H. Byne, on or about the 21st November, 1844, under various attachments. By an order of the Appeal Court, the property was ordered to be restored to W. H. Byne, on the ground that the seizure was illegal. It remained, however, in the gaoler’s possession until the 6th February, 1845, (when several fi. fas. were lodged, under which the sheriff sold in March,) without any authority to the sheriff to keep it, except the attachments, the execution of which had been declared illegal. For this period of time, it was contended the sheriff had no right to pay his gaoler for feeding the negroes and horses. He had also paid the gaoler fifty cents a day for feeding the horses, instead of twenty-one cents, which is the allowance by the fee-bill. The plaintiff contended that this excess for feeding the negroes and keeping the horses, the sheriff wrongfully paid, and that it should be added to the admitted balance and paid to the plaintiff’s execution. This was one of the disputed points of the case ; the other was a contest about priority, between Gardner and other creditors of Hust. To the understanding of this, it is necessary to give a history of the cases somewhat in detail.
    “ Gardner's case. This was a domestic attachment, levied on ' the 7th February, 1845, which was regularly prosecuted to judgment and fi. fa. It appeared that, for this same debt, Mr. Richardson, in Charleston, had taken a confession of judgment in the name of Mr.Wigfall, as attorney. The fi. fa. in this case was lodged with the consent of Mr. Carroll, who was Gardner’s attorney in the attachment, under a stipulation that it should not impair the lien of the attachment, and was only to be regarded as collateral security.
    “ B. jB. Miller’s case. This plaintiff was one of the original attaching creditors, whose attachments had been levied by seizing the property, whilst in W. H. Byne’s possession, or after the sheriff had thus acquired illegal possession. On the writ, Mr. Yancey, the plaintiff’s attorney, had entered a discontinuance on the 13th February, 1845. On the same day, he issued a domestic attachment for the same debt. This was levied on the same day, and regularly prosecuted to judgment. In March, Mr. Richardson, in Charleston, where Ilust was, took a confession on the original attachment writ, (foreign, I believe) which was brought up to Edgefield, and filed in October. A fi. fa. was lodged before they?, fa. in Gardner’s case. The entry of the discontinuance on the writ was crossed out, but I do not know at what time.
    
      u Boggs’ and Hall’s cases. These were domestic attachments, levied at the same time and in the same way as Miller’s.' They were also marked “ discontinued,” but this was afterwards crossed out and declarations filed, but there had, as yet, been no judgment.
    “ These three cases having been levied on the property of Hust after the sheriff had taken it out of W. H. Byne’s possession, it was contended by Mr. Yancey, did not come within the order of the Appeal Court, declaring the levy illegal, and ordering the property to be restored to the possession of W. H. Byne. But I did not think so. If the possession of the sheriff was acquired illegally, any levy on it was illegal until he had restored the possession to W. H. Byne.
    “ The first question I shall consider, is whether Gardner’s case is entitled to priority over the other cases mentioned. As to Boggs’ and Hall’s cases, there does not seem to me to be any doubt. These cases were never levied except at the time the property was in W. H. Byne’s possession, or immediately after the sheriff took possession. This was illegal, and consequently created no lien.
    
      “ As to Miller’s case ; that depends on two questions :
    
      “ 1. Did Bust’s confession of judgment on the attachment, after the service of it had been declared illegal, and after the writ had been discontinued, revive the original lien created by the illegal levy ?
    “ 2. Was the lien of Gardner’s attachment defeated by the subsequent confession of judgment, in a common action of assu mpsit, for the same debt 1
    
    
      “ On the first ground, I was of opinion that Bust could not, by his confession, restore the original lien which had been discharged both by the judgment of the court and the discontinuance of the plaintiff, so as to defeat the lien which Gardner had acquired in the mean time by the levy of his attachment, on the 7th February. On the second ground, I was of opinion that it is not illegal to have two judgments for the same debt. The plaintiff shall not have satisfaction on both, but may have satisfaction on either, at his election, and consequently that Gardner’s case is entitled to precedence in payment over the other cases mentioned. I was also of opinion that the sheriff had no right to pay the gaoler for keeping the negroes and horses, whilst they were illegally in his possession, and that this sum, and the overcharge for keeping the horses, must be added to the $612 43, and paid to the plaintiff Gardner, and it was ordered that the rule be made absolute. But I must be permitted to say, that I think it rather ungracious to require the sheriff to refund, because of his illegal possession, when but for that possession the plaintiff could not have levied his attachment.”
    The creditors, B. B. Miller, Archibald Boggs and Charles Ball, appealed, and now moved to reverse the decision, on the following grounds:
    1. Because it was clearly established, by the affidavit of sheriff Lindsey, that when their attachments were levied, neither Wm. B. Byne, nor any one else claiming right or title, had the possession of the property, but that the same had been left derelict.
    
      2. Because, assuming that the property had been wrongfully taken from the possession of W. H. Byne, by the sheriff, under process of attachment, at the instance of other creditors of Harmon Hust, yet that circumstance gave the property no immunity or protection from a subsequent levy, at the instance of other creditors, while it was not in ■Wm. H. Byne’s possession.
    3. Because the levy of the attachments of Miller, Boggs and Hall, was not absolutely void, and at most only voidable at the instance of Hust or Wm. H. Byne, and they having waived and abandoned any advantage of that irregularity, it is not competent for Gardner to make the objection, in their name, for his benefit.
    4. Because the acceptance by Gardner of a judgment confessed by Hust, on an ordinary writ of capias, for the same debt and cause of action upon which his attachment had issued, was a waiver of any lien by levy, and was a merger of his cause of action into a judgment, and that cause of action could not afterwards form the basis of a second judgment.
    The sheriff, H. Boulware, also appealed, and now moved to reverse so much of the decision as excluded him from compensation for keeping the property, from 21st Nov. 1844, to 7th Feb. 1845, on the additional grounds :
    1. Because the expense of the sheriff in keeping the property, even without authority, during the time stated, is a lien on the property itself, and the sheriff Was, so far as concerns Gardner, a creditor of Hust in possession.
    2. Because it is perfectly certain that the plaintiff, Gardner, would have lost his debt, but for the seizure and detention by the sheriff, of the property, whilst on its flight to Texas.
    3. The sheriff submits that his possession was rightful, from the time he made his first levy, in November, 1844.
    
      Bauskett & Yancey, for the motion.
    Carroll, contra.
   Curia, per Evans, J.

There is not, and cannot be, a doubt, but that all parties who had levied attachments, whether foreign or domestic, on the property of Elijah Byne, Enoch Byne and Harmon Hust, in Nov. 1844, were before the court and represented by counsel, when the case of Moore & Davis & al. vs. Elijah and Enoch Byne and Harmon Hust, was considered and decided.

In that case, (1 Rich. R. 99,) it is expressly stated that the slaves alleged to be the property of Harmon Hust were seized under domestic attachments ; that they were in the •exclusive possession of W. H. Byne ; and that he claimed them as a purchaser. This seizure, as well as that of the other property attached as belonging to Enoch and Elijah Byne, was, in the case referred to, declared to be illegal, and the property ordered to be delivered up to W. H. Byne, out of whose possession it had been illegally taken. Boggs and Hall were, so far as I am informed, the only persons who had issued domestic attachments, and they were certainly before the court and bound by its decision. Their attachments were levied on the 21st Nov., and there is no pretence that the negroes were not, when levied on, in the exclusive possession of W. H. Byne. It has been said by the counsel, in the argument here, that Hust came over with the negroes from the State of Georgia, and was in the neighborhood when the sheriff levied. This may be so ; but it was not so understood, when the case was before the court; nor do I see that that fact could make any difference, if, as was represented, W. H. Byne was a purchaser ■in possession.

It has been contended that Miller’s case is not affected by the decision in the case of Moore & Davis and others vs. Byne & Hust, because the deputy sheriff, Lindsey, swore that no one was present when he levied it; or, as is said in the brief, the property was derelict. By the sheriff’s return, it seems it was levied upon on the 21st and 22nd. of Nov., and it is very possible that the levy was made after the property was forcibly taken out of W. H. Byne’s possession, and when he was not present; but it would be a disgrace to the law, if a legal levy could be made by a sheriff on property of which he had illegally possessed himself, to the prejudice of the rights of others.

Miller, with the other attaching creditors, was a party before the court in the case above stated, and if there had •bepn any thing in his case which required the application of a rule differing from the other cases, it should then have been presented. That his attorney considered his case as decided, I think may be fairly inferred from his subsequent proceeding by domestic attachment. How the sheriff retained the possession of Bust’s property does not clearly appear ; but it appears from the case of Byne vs. Byne, 1 Rich. 440, that the sheriff did deliver up the property of the Bynes to Wigfall, the attorney of W. H. Byne, but that it was immediately seized under a new batch of attachments. From an order, made by consent at the subsequent court, discontinuing .all foreign attachments which had been issued against Hust, wherein he was a party with the Bynes, I infer the sheriff had seized Hust’s property as well as Byne’s, under these new attachments. In considering the case, I shall assume that the levy of the attachments of Miller, Hall and Boggs, has been already decided to be illegal and void, and then the true questions involved in the case will alone remain to be decided. In the case of Byne vs. Byne. 1 Rich 440, my brother Frost said “ an illegal service of process is not the commence-mént of an action, the pendency of which may be objected to a second suit.” Such illegal service creates no lien in cases of attachment. If there was no lien, then the confession of judgment by Hust to Miller is not the revival of a lien by waiving an irregularity, but the creation of a lien by relation back to the illegal service. If the levy had been set aside at the instance of Hust, and it had been a mere irregularity, then it may be that, as between him and Miller, he might, by confessing judgment, waive the irregularity and remove the objection to the levy. He, at least, would not, after the confession, be allowed to question the regularity of the previous proceedings. But the doctrine, contended for in this case, that such waiver, by relation tack, can defeat rights which had accrued in the mean time, has no support from any case or any legal analogy. In this view of the case, Miller’s confession of judgment can only (as to Gardner,) be regarded as a common confession, and has no lien except that created by the fi. fa. which was not lodged until October. In the mean time, Gardner had acquired a lien both by his attachment and his fi. fa., and the question, whether Gardner’s confession of judgment extinguished his lien by attachment, may be unimportant to the decision of the case. But this was one of the questions seriously argued by the counsel and decided by the court; and I will present my views of it. In general, the taking of a higher security is an ex-tinguishment of a lower one. The lien of a judgment and fi. fa. is general, and includes all the debtor’s estate; whilst the lien of the attachment is only on the specific property levied on. It sometimes happens, as was the case here, that the specific lien is more valuable to the creditor than the general lien, and hence the propriety of that rule of law which says that the higher security must be accepted as satisfaction, in order to operate as an extinguishment. If not accepted as satisfaction, then it is merely additional or cumulative security 'for the same debt; 1 Mason, 505. In the absence of proof to the contrary, the authorities seem to favor the notion, that the law will imply the higher security was in satisfaction of the inferior; but in the case of Twopenny & Boys vs. Young, 10 Eng. C. L. R. 54, it was held that the higher was only additional security, where the intention appeared from the recitals. But it is supposed that this legal presumption cannot be rebutted by parol evidence. That may be so, where the fact, that both securities were for the same debt, appeared from the higher security, or by comparing the two together; but if the fact is proved by parol, there can be no objection that the terms on which the higher security was received, are also proved by parol. In. this case, the records do not identify them as being for the same debt; the declaration in the confession case is on an account stated for $1000, without interest; the attachment is on several notes, which, with interest, exceed that sum. The parol evidence, which identifies them as for the same debt, also shews the terms on which the confession, which Hust tendered to Gardner for his debt, was accepted by him. In 1 Mason, 505, it is said: “ whether the higher security extinguishes the lower, is always a question of intention.” It seems to me, therefore, that there is nothing in this ground.

. There is nothing in any of the grounds made on the • part of the sheriff, Boulware, which requires any comment. His levy in November was clearly tortious, and he cannot charge for keeping property of which he has thus acquired possession. I suppose he levied on Hust’s property the new batch of attachments, which were issued after the service of the first was set aside. These, as against Hust, were discontinued, and he must look to the plaintiffs for his fees, if they are liable. Certainly, Hust’s property is not liable for fees in cases not prosecuted to judgment.

The judgment of the circuit court is therefore affirmed, and the appeal dismissed.

BjchaRdson, O’Neall and FRost, JJ. concurred.

Wardlaw, J.

dissenting. In the case of Moore & Davis et al., vs. Elijah Byne et al., 1 Rich. 94, I read a dissenting opinion, which was prepared in unusual haste, as the interests of parties in the circumstances of that case urged a speedy decision. Subsequent engagements prevented me from putting that opinion into a satisfactory form before the report of that case was published. I then thought, that before the amendment of our attachment law made in 1844, the sheriff might, at his own risk, even under a foreign attachment, seize goods attached, in the hands of a third person, leaving such person, if he claimed rights, either as owner, or as garnishee in possession, to assert those rights in the mode prescribed by the attachment Act of 1744, or in an action of trespass ; and that there was no more propriety in the court’s interfering summarily to redress a trespass committed by the sheriff under color of an attachment, than one committed under color of an execution.

It is my intention now, not to question the decision then made by the court, as I understood it, but to shew that this case is not embraced by it. That case involved various foreign attachments, and one domestic attachment, which last was against Hust; (see Judge Butler’s report in Moore Davis vs. Byne.) I do not know who was the plaintiff in that domestic attachment, nor upon what affidavit it was founded. That case was argued entirely in reference to the law of foreign attachment, and I think the rules which might be applicable to the various kinds of domestic attachments, received little or no consideration in the court, although the opinion which was delivered contains some remarks intended to shew that the same rules, as to the matter then in hand, were applicable to all kinds of attachments.

In the course of the argument in the present case, I have for the first time heard the affidavit read upon which one of the domestic attachments was founded, and have understood that the three domestic attachments mentioned in the report of this ease, (if not all that were issued against Harmon Hust,) were founded upon like affidavits. The affidavit is such as is required by the 6th section of the county court Act of 1785, (7 Stat. 214,) “ that the debtor intends to remove his effects.” In the case of an attachment founded upon such an affidavit, it is clear, from the words of the statute, as was decided in the case of Chambers & Sadler vs. McKee, 1 Hill, 229, that there can be no garnishee, but that a sheriff of any district may pursue and seize the effects.

The order, which was entered at Edgefield court, March Term, 1845, for the setting aside of various writs of foreign attachment against Harmon Hust and either,or both of the Bynes, in its very terms, is applicable only to the cases of foreign attachment; even if Miller have lost the lien of his first domestic attachment, by suing out a second one on the same cause of action, and pursuing it to judgment, there is nothing in the entry of discontinuance made by the attorney and struck out by him upon the writs m the cases of Boggs and Hall, of which third persons can now take advantage, or which would avail to affect the lien of those writs. If, then, the sheriff had a right to seize Hust’s negroes under Boggs’ and Hall’s domestic attachments, in Nov. 1844, the lien of those attachments still subsists, and they are entitled to the fund now in dispute, in preference to Gardner, the present applicant.

Had not the sheriff this right ?

It will be observed, that the 1st section of the Act of 1844, (ll Stat. 290,) relates only to cases of foreign attachment, where the third person shall not on oath claim the property as creditor in possession; as to such attachments as those of Boggs and Hall, the law now is the same that it has been ever since 1785.

In the case of Walton vs. Deignan, 2 N. & McC. 248, the domestic attachment was one of that kind which is founded upon an affidavit that the debtor absconds and conceals himself, fyc., wherein there may be a garnishee; and although there was there no affidavit of the occupant from whose possession the sheriff took the goods, it is plain that the court considered that the sheriff had a right to take the possession, and pointed out the futility of the process if such right did not exist. Our inquiry now concerns the plainer case of an attachment, wherein there can be no garnishee, or levying upon goods in the hands of a third person.

In this case, the sheriff could in no other way have made service of the process, but by seizure ; he could, by no copy delivered, or other means, have exacted any return from the person claiming to be in possession, or have imposed upon him any liability. If he had forborne to seize instantly, the negroes might have been hurried in a rail road car beyond his reach, even during a delay obtained by pretence of time needed for making an affidavit.

Byne’s negroes were seized at the same time, under foreign attachments, and could not then be distinguished from Hust’s ; the sheriff might, therefore, have been a trespasser as to Byne, but his seizure was not the less lawful as to Hust. Our inquiry is now concerning the proceeds of property ascertained and acknowledged to be Hust’s.

Was the sheriff’s right to seize or hold taken away, because one W. H. Byne, who was present at the seizure, has since submitted an affidavit that the negroes were his ? No party to the present proceeding now urges the truth of this affidavit; all now admit, in argument, and have admitted by their acts, that-the property was Hust’s, and that he too was with the negroes shortly before the seizure, and was near at hand when it was made. But looking only to what was represented to the court at the argument ot Moore & Davis vs. Byne et al., it is only that a claim was set up by a third person having equivocal possession of the property which the plaintiff in attachment alleged to belong to the fugitive debtor.

If this must of necessity have stayed the hand of the sheriff, it is only necessary, in order to defeat the remedy intended by the 6th section of the Act of 1785, that a fraudulent debtor, fearing pursuit in his attempt to carry his property beyond the reach of his creditors, should intrust its transportation to some agent, bold and unscrupulous enough to claim it, and, if need be, swear to it. Before such an instrument, the law is powerless to detain the property ; and trusting to the immunity thus procured for his goods, the absent debtor hastens his own escape, knowing that his valuables will speedily follow, and that the truth of his agent’s pretensions will come limping after. The law, I am persuaded, intended not to limit the right of seizure to the case of property in transitu, accompanied by the debtor himself and by him only, but to make the remedy coextensive with the mischief — the right of seizure commensurate with the design of the debtor to remove his effects, as established by the plaintiff’s affidavit. I think negroes may be seized, if they be-left behind, whilst others have been taken off; if they have been prepared for removal, but have not started ; if no evidence of the intention to-remove be found beyond that which exists in the plaintiff’s affidavit; if they be travelling without the control of a superior, or under a driver or overseer ; and if an agent have charge of them, even if they really belong to the person supposed to be agent, but are pointed out as the debtor’s, and the sheriff is willing to take the risk. What the harm of this, more than of taking one man’s property under fi. fa. for another’s debt ? The sheriff is liable to action for any wrong done, and if the property seized belong to a third person, adequate remedy may be had. The right of seizure is essential to preserve the efficacy of that kind of attachment, which was resorted to, to save it from becoming ridiculous and contemptible, the sport of the dishonest, and a reproach to the law.

I have been confirmed in my views by the unfortunate result of the whole "proceedings against Host’s negroes. The diligent creditors, by whose lucky pursuit the property was arrested when fast on the way to foreign parts, have been doomed to see the fruits of their exertions transferred to others more favored by the debtor, whose schemes have been baffled ; and the officer, whose zealous efforts, in. the discharge of what seemed to be his duty, have saved to any of the claimants a subject for contest, is deprived of even the outlay made in the services he has rendered.'  