
    
      The State vs. James H. Page.
    
    1. It is irregular to issue a second fi. fa. when the first has not been returned, yet if it be regular upon its face, and issued in confprmity to the judgment of a court, in a case of which it had jurisdiction, it is not void, and will justify the sheriff, as this is all to which the sheriff can look.
    2. If the proeessbe void, it is no justification to the sheriff, but if be merely irregular, •then it is.
    3. Whether a contract is to be understood as a lease, is a mere question of construction, and there is no artificial rule by which it is to be decided. The intention of the parties is to be collected from the whole instrument, and if it was intended as a lease, then, it is so to be regarded, otherwise, not.-
    4. Rent is not essential to a lease, for, from favor, or valuable consideration, the tenant may have a lease without any render. Yet, that must be in a case where a lease was clearly intended. When, upon construction, it be doubtful whether a lease was intended or not, then it constitutes a very importairt circumstance that rent was not reserved eo nomine, or substantially.
    5. A mere participation in profits, with a possession, which does not exclude the •owner, will not make a lease.
    6. The provisions in the agreement between the defendant and the Hotel Company, that the defendant was to “ reside with his family in the hotel, (free of all charge for ■board and rent,”) “ conduct the same in the manner contemplated by the parties, and to have the whole and exclusive management thereof,” and that the furniture, at the end of the term, should be returned to the company by the defendant, would not, standing by themselves, malte a lease.
    7. Where the provisions in an agreement between P., the defendant, and the Charleston Plotel Company, were, that said company and P. had agreed “for the keeping of the hotel” “ for the term of seven continuous years,” “ that P., as the landlord, shall provide for the hotel“ shall contract no debts on account of the concern, without the •consent of the directors;” “ reside with his family in the hotel, ( but free of all charge for •board or rent;”) “ keep constantly in his employment a book-keeper, who shall keep the •accountsbut if the directors disapprove of him, he shall be discharged by P. the books to be opened for the examination of any of the directors; which particulars of the agreement are followed by provisions for the compensation of P., varying according to the profits, but at last securing him, in any event, a certain compemaiion of $4000^er a/nivum; and another provision in the contract was, drat P’s. interest was personal, merely, not transferable to any one, not liable for his debts, and if P. should die, that compensation should be made to his representatives — it was held by die court, diat this agreement was not a lease; that notbeing a lease, the contract could have no effect atlaw, as against die rights of the owners to possession; that P. being in possession, as agent of die owners, die company, to manage for them, had no legal interest in die possession, which could be set up against an execution for the debt of the company.
    8. The word “ term,” though, appropriate to' designate a lease-hold estate, will yet be ■controlled by the plain meaning of the contract, as it may mean the end of the period ■for which one is employed, as well as any interest which he had.
    
      Before the Hon. Jacob AxsoN,m the City Court of Charleston,
    This was an indictment against the defendant for resisting the city sheriff in levying an execution against the Hotel Company ads. G. S. Cameron, on certain furniture in the Charleston Hotel.
    THE STATE OF SOUTH CAROLINA,) City of Charleston. )
    
    ARTICLES OF AGREEMENT, as originaliy entered into between the President and Directors of the CharlestOj^Hotel Company, for and on account of the Charleston Hotel Company, and James H. Page, on the twenty-third day of February, eighteen hundred and thirty-seven, and amended and modified by the said parties, this seventh day of July, in the year of our Lord, one thousand eight hundred and thirty-eight. The said parties have agreed for the keeping of the Hotel, contemplated by the Company, now in progress of construction in Meeting-street, by the said James H. Page, for the term of seven continuous years, to commence on the day that the building shall'be finished and furnished, which day shall be endorsed by the said parties on this memorandum, upon the following terms, to wit: That the said James H. Page, as the landlord of said hotel, shall provide for the same, but shall contract no debts on account of the concerní ■without first obtaining the sanction of the Board of Directors of the Company. That he shall procure and obtain all waiters and servants, and die same discharge at will and pleasure. Reside witíi his family in the Hotel, (but free of all charge for board or rent,) conduct the same in the manner contemplated in these presents, and to have the whole and exclusive management thereof, bestowing upon it his entire attention. That the furniture shall be procured and purchased by tire said Charleston Hotel Company, and shall be considered as a part of the capital invested, but shall, at the expiration of the aforementioned term, be returned to them by the said James H. Page, or his personal representative, in the like order and condition in which diey will be received by him, ordinary wear and tear, and unavoidable losses and accidents excepted. It is understood, that tire amount of forty-five thousand dollars shall be expended in the furniture of the house, and that, of that amount, tire sum of thirty thousand dollars shall have been purphased and placed in the Hotel before the house shall be considered ready for occupation, P»d the balance shp.ll be purchased within six months after the commencement of operations, if required by the said James H. Page. That the said James H. Page shall keep constantly in his employment, a competent book-keeper, who shall keep the accounts of the Hotel, according, as nearly as possible, to the most approved checks and usages adopted by well-regulated mercantile establishments. Should the Directors consider the said book-keeper incompetent, or otherwise disapprove of him, he shall be discharged by said James H. Page, or the aforesaid Directors, making known that wish to him, and James H. Page may discharge him at any time, and procure another book-keeper, subject to. the same disapproval by the parties. The books of the establishment shall always be open for the examination of any member of the Board of Directors, and shall be balanced on the first day of each and every month, so as to clearly exhibit the gross receipts of every month, the expenditures of the same, and the cash on hand. The nett profits remaining on hand at the expiration of every year, and after deducting the expenses of the Hotel, shall be disposed of in the following manner, viz: If the said annual profits amount to the sum of ten thousand dollars, the said JameB H. Page shall be en* titled to five thousand dollars, and the said Company to the other five thousand dollars. If the said nett annual profits amount to fourteen thousand dollars, the said James H. Page shall be entitled to six thousand dollars, and the said Company to eight thousand dollars. If the same shall amount to sixteen thousand dollars, tire said James H. Page shall be entitled to seven thousand dollars, and the said Company to nine thousand dollars. If the said nett annual profits, amount to the sum of twenty thousand dollars, the said James H. Page shall be entitled to eight thousand dollars, and tire said Company to twelve thousand dollars. And if the said nett annual profits exceed the sum of twenty thousand dollars, of the excess over and above the said sum of twenty thousand dollars, the said James H. Page shall be entitled to two-fifth parts, and the said Company to three-fiftlr parts. Should the nett annual profits fall short of the sunr of ten thousand dollars, the said James H. Page shall, nevertheless, and at all events, be entitled to the sunr of four thousand dollars, as an annual compensation for his services; and if the nett annual profits amount to any intermediate sum between those specified in the above scale, the same shall be divided between the said parties, pro rata, according to the said scale. It is further agreed between the said parties, that in ascertaining the nett profits, no account shall be taken or charged against the said James H. Page, either for rent or for interest of the capital invested in the building and furniture; and also, that the said company shall keep the house and furniture under insurance; and in case of the destruction of the same by fire, during the continuance of tire said term of seven years, the same shall be re-built and furnished, and again placed under the care of the said James H. Page, on the said terms and conditions as herein mentioned, for the remainder of the said seven years. The said James H. Page to receive, during the re-building and refurnishing thereof, the sum of four thousand dollars per annum. Provided, that it shall not be obligatory upon rhe said company to re-build and re-furnish the hotel, should they fail, in any material extent, to receive the amount of their policies of insurance. It is further understood and agreed, that on the first day of every month, the nett profit's appearing upon the books may be drawn by the parties, in proportion to their respective ■interests, as established by the foregoing scale; and the sums so drawn shall be account-ted for and allowed in the annual division of the nett profits. It is also understood, and distinctly agreed, this contract or agreement, and the right of the said James H. Page to keep tire hotel, is strictly and purely personal, not transferable to any one whomsoever, by the said James H. Page, nor in any manner liable for his debts; but if the said James IT. Page should die after tire expiration of the second year, and before the commencement of the seventh year of the term, the- personal representatives of the said James IT. Page shall receive from the said company the sum of five thousand dollars; and if the death of the said James H. Page should occur at any time during tire seventh year of the term, the personal representatives of tire said James H. Page shall receive from the Company a sum of money to be named by three referrees, of whom one shall' be nominated by either party, and the third by tire two so named.
    
      The defendant justified, on the ground that he was lessee of the hotel and furniture, and entitled to the posssession, as against the Hotel Company and their creditors; that he had á legal right to defend his possession, and that he used no more force than was authorized by the circumstances.
    The following is the testimony:
    
      Laurence Ryan, sworn — Testified he was sheriff of the City Court on 6th March last; went on that day to the hotel to make a levy, under an execution in case of George S. Cameron vs. Hotel Company; (execution produced;) on Friday levied on a great many articles ; on Saturday returned and told Page he came to remove the things he levied on, to wit: furniture, beds, <fcc. cfcc. Page told him he would resist him; he called one of his deputies, and directed him to remove a particular chair to the piazza ; Page laid hold of one arm of the chair, and witness of the other; Page put his hand on witness’s shoulder and said he opposed him; witness reported this to Mr.Yeadon; be directed him to return and renew the levy; Page said he would not suffer him to levy ; he desisted on account of Page’s violence ; he left his deputies on Friday night at the hotel; he had no doubt there would be a great deal of violence; he shewed Page the execution on Friday, at his request; he levied on the property as the property of the Charleston Hotel.
    
      
      Cross-examined — He said he did not instruct his deputies not to tell their names; (execution under which he levied produced) ; he said it is in the handwriting of Mr. Yeadon ; he received a letter from Mr. Page, stating the grounds of his opposition ; don’t recollect that Page said he might sell the right, title and interest of the Company; Page said he would take the furniture at the risk of trouble; witness acted under a bond of indemnity, (which was produced) ; he says he exercised his own judgment as far as he knew; Page or Hunt offered to him to submit the question to a, jury, which he declined ; he consulted Mi*. Yeadon in every thing; witness attempted to pick a lock of an outside door in Hayne-street, but failed; an effort was then made to break it; Cameron got a scantling, and with some friends, battered at the door ; failed in this; witness was present, and sanctioned this; then forced an outside cellar door; broke the fastenings ; thinks he shewed Page the execution; is certain he saw it; witness was told by Page or Hunt to consider himself opposed, and he would go before any Judge and justify his course; the laying on of hands by Page was very mild; would hardly have brushed off a fly; witness did not investigate the right of property; he would not have levied had he not been advised to do so; Page asked witness the names of his deputies, and he refused to give them.
    
      In Reply — Witness said he is perfectly satisfied, if he had gone on, Page would have used more violence; after the assault, he hesitated if he should go on; he may have consulted Mr. Rice on the subject; he considered the door on Hayne-street, a part of the hotel; the cellar door was in the enclosure of the hotel yard; witness entered peaceably into the hotel.
    
      Richard Yeadon, Jr., testified — On Friday, 5th March, 1841, Cameron employed him to effect a levy on the Charleston Hotel Company, under an execution, at his suit. Messrs. Smith Richardson were his attorneys; witness advised Cameron to have the levy made ; he was entitled to it, and the Company was willing he should have it; the sheriff, before he would proceed, on advice with counsel, demanded a bond of indemnity, which was given ; the sheriff and his deputies, plaintiff and witness, went to the hotel and enquired for Page; he was absent; stated to Page’s agent our business, and requested that Page should be sent for; he came, and we stated to him our object, which was to levy for crockery furnished the hotel, and before we proceeded we had a proposition to make ; Cameron’s judgment was the first and only one against the Company, and advised him to pay it and take .an assignment of it — it would strengthen his position ; he declined this, and said the sheriff would proceed,at his peril, and he would hold him responsible for damages ; was asked if he intended to offer resistance; said not, but,he would afford him no facilities; the sheriff must proceed at his peril; he was asked for the keys of the cellar; he refused to give them; an attempt was made to get into it, but whether successful or not, don’t know ; the object-of going into the cellar was to levy on liquors ; a great many bottles were brought out of the cellar ; supposed not to be included in the mortgage; heard Page say, why don’t you levy on the furniture, that is the property of the Company; witness is under a strong impression that Page admitted that tbe crockery was the property of the Company; a conversation took place about discounting Cameron’s board; he refused, although he admitted Cameron’s debt was due to the company ; the sheriff made his levy, but the furniture was not removed that afternoon, on account of a heavy rain; the deputies staid there all night; next day witness was sent for by Cameron ; understood from Page that he had taken counsel, and would resist; witness complained to him of a want of fairness; he went away, directing the sheriff to go on with his levy; shortly after this, the sheriff told him a constructive resistance had been tendered; witness directed him to go on until actual resistance should he made; Hunt and Page said there would be resistance unto blood; they said they would meet force with force.
    
      Cross-examined — He said Page claimed a lien on the property; Ryan had notice of Page’s claim; witness has no recollection that Page claimed the liquors as his own ; Hunt said he would use no more force than was necessary, but distinctly understood, that if necessary, there would be resistance to blood ; Hunt offered to submit the matter to a jury; this was declined.
    Judgment of George S. Cameron vs. Hotel Company, was introduced, entered up 21st November, 1840 ; fi. fa. same day.
    Here the State closed.
    
      
      Defence.
    
    
      F. S. TPard, sworn — Proved the execution; the original execution was in Colonel Hunt’s possession ; not returned ; and the one proceeded upon appeared to be a duplicate; however, they will speak for themselves.
    
      Alexander Black, sworn — Testified he was President of the Company at the time of the contract with Page ; proves the books of records; Page came out at the instance of General Hamilton and Augustus Gaillard ; (see records;) March 1,1837, report and agreement with Page ; hotel was burnt in 1838; 19th May, 1838, Petigru’s opinion; 4th June, 1838, modification of the first contract; 22d May, 1838, refusal of Page to accede to propositions of General Hamilton; June 29, 1838, proposition of Meminger to allow a compensation of $4000 per annum; 2d July, 1838, that Page would furnish modifications of the contract; 12th July, 1838, the new contract read and approved ; 24th October, 1839, hotel furnished and finished, and Page put in possession ; from this time Page continued in possession, and fulfilled his contract without any charge of departing from the letter of his contract; some found fault with his management; Cameron sold his crockery to the Hotel Company; the Company is managed by President and Directors, a majority of them are among the forty mortgagees, at page 112, records; Committee on Accounts report, June, 1840, that it was at Page’s option whether he allowed Cameron’s account in board, as they owed him $3000; witness knows of no other property of the Company than the furniture ; the Company is deserted by all except the forty; all the Directors are of them except one; witness was present with twenty or twenty-two of the mortgagees ; they knew of Page’s claim; they had notice of it; he told Page if he thought it would interfere with him he would cut his arm off.
    It is also understood and agreed between the said partres, that the said James H* Page, in the management of the hotel, will establish and maintain a system of as strict accountability from the servants or agents under bim, to himself, as is to be found in the most approved managed hotel in the United States.
    
      
      Cross-examined — Witness said he was one of the forty; has not paid his note ; Page was one of the forty; the hotel could not have been furnished without the forty ; this was the most feasible plan; as a Company, they had no money or credit; the endorsement on the contract was unanimous; the furniture was bought in the name of the Company; large portion of the wines was put into the concern by Page ; he sold them, or some of them, to the Company; if Page buys wines, it is charged to expense account; Page knew that the hotel was to be furnished by the loan from the forty; he knew that the hotel was to be built by the fire loan; Page’s contract was made long before the loan; the forty looked to the Hotel Company; witness knows that Page has purchased liquors since the Company has lost credit; don't know to whom they are charged ; he told Page eighteen months ago, he would buy nothing on the credit of the Company; he must carry it on on his own resources; he prohibited him from buying a bottle of wine on the credit of the Company; the profits, if any, would be applied to the payment of such debts; the Company has never received a dividend ; all the money passed through Page’s hands; he has paid the contracts of the Company; the income is applicable to the current expenses; Page’s chief reliance is on the hotel; he is not a man of fortune ; the books exhibit, for fifteen months, ten to twelve thousand dollars profit; the summer of 1840, the hotel was well patronised for the season ; it has not been, and is not now, a losing business; the stores were reserved to the Company, except the store-room and bar ; books account, page 46, 26th October, 1840, profit one year, $11,000; books were examined by the old Board; contract was recorded in Mesne Conveyance office, 21st May, 1840 ; mortgage to forty, recorded July, 1839 ; policy on wines and liquors in the name of Page.
    Witness the seal of the said compnany, and the hand and seal of the said J. H. Page, on the day and year aforesaid.
    ALEX’R. BLACK, (l. s.) President Charleston Hotel Convpamj.
    
    J. H. PAGE, (l. s.)
    Signed, sealed and delivered in the presence of (the word !< annual” being first interlined in the third page, fourth line, ) Georoe W. Losan.
    Charleston, October 24th, 1839.
    This day the Charleston Hotel was finished and furnished, agreeable to the within .contract. JAMES H. PAGE.
    By order of the Board,
    ALEX’r. BLACK, (l. s.) President Charleston Hotel Com/pamj.
    
    Attest, G, W. LOGAN, Sedy and ’Frea£r, Charleston Hotel Com/pany.
    
    
      J. K. Russell, sworn, testified. Book-keeper for last twelve or fifteen months; cash book képt by him ; the books were always open to examination of hotel company, on examining them they were always satisfied ; the cash book will shew the receipts and disbursements up to' this time; the books are at the command of the company; he should think the hotel indebted to Page; the books have been frequently taken out and examined by the directors, and returned, and no fault found ; served Dr. Mendenhall with a request to come and examine the books; five (5) notes of Page’s, for wines, <fec., were paid out of the proceeds of the hotel; Page is obliged to buy on his own credit; there were outstanding notes of the company before he took charge, which he has paid ; there is no old stock on hand ; all that is there, Page has purchased; was present when the sheriff came to levy, on Friday ; Page offered no resistance, but would afford no facilities ; next day he claimed the right to retain possession ; heard him say the sheriff might sell the right, title and interest of the company ; last summer they merely saved expenses; dismissed servants, and reduced expenses; the business was better last year than this.
    
      South Carolina — Charleston District.
    
    Personally appeared before me, George W. Logan, and made oath that he was present, and saw Alexander Black, President Charleston Hotel Company, and James H-Page, severally sign, seal and deliver, the annexed instrument between Alexander Black, as President Charleston Hotel Company, and James H. Page, and that he witnessed same. Sworn to before me, this twelfth day of May, 1840.
    RICHARD IRVING, J. P. GEORGE W. LOGAN.
    Recorded and examined, this 12th day of May, 1840.
    M. I. KEITH, Register.
    
    
      Register Mesne Conveyance Office, Charleston DistHct.
    
    I hereby certify, that the foregoing is a correct copy from the record 'in the office,, from book E. No. 11, pages Í56 to 160; the 21st May, 1840.
    Signed, RICHARD IRVING, Deputy Register.
    
    
      Cross-examined. — He said, from December, 1839, to 1841, to the credit of house account is carried profit and loss; profit and loss account, page 46, is balanced monthly.
    
      In reply. — These books were kept by Page; not long since the directors examined the books; thinks at Mr. Hare’s store; they pointed out some small errors; Page ■occupied Richardson’s house last summer, but kept the hotel all the summer.
    
      Solomon Moses, sworn, testified. Was there on Friday; saw Ryan with Welch, (a man from Cameron’s store, in Hayne street,) trying to open a door; saw Welch with some instruments ; called Ryan, and a.sked the cause of this ; was told he had an execution against the hotel company ; cautioned him not to break any thing; he said he was indemnified ; there was a great crowd there.
    
      G. W. Logan, sworn, testified. He was present when Page was put in possession, and the endorsements put on the contract; some of the forty knew of Page’s contract^ some of them read the proceedings, (referred to in the minutes ;) the forty did not think that Page’s contract interfered with them; don’t think the furniture would have paid the mortgage.
    
      Cross-examined. — Said Cameron is one of the forty; a great deal of furniture was purchased after the mortgage; all after-purchases were entered in a schedule, and added to the mortgage; the crockery purchased from Cameron was never put in the mortgage; Wiley’s bill for furniture has never been paid; a bill is owed Gleason; the last addition to the schedule was last summer; the store in Hayne street belongs to the hotel company ; no door from interior of the hotel to get to it.
    
      Col. Hunt, sworn. — Testified, he stated to Mr. Yeadon, distinctly, that he did not think the property liable to the execution ; said he would advise Page to use no more force than was necessary ; Yeadon asked him if he would resist to blood; he said if it became necessary he would resist at all hazards; that he would take the consequences; he advised Page to meet force with force; to use no more force than was used against him; not to be the aggressor, but defend himself.
    
      Cross-examined. — Hé said to Yeadon, in the afternoon, if you proceed in this matter, the hotel will be a scene of bloodshed; Yeadon replied, that need not be, for they intended only to pull, and he that pulled the strongest would get the furniture; said if Page resisted, he would have him in jail; and that he directed Ryan, if he was opposed, to come to him.
    
      James T. Burns, sworn. — Testified, he was present at a conversation between Hunt and Yeadon, in Hunt’s office; was reading at the time, and his attention was arrested at the time, by hearing Yeadon say that all Hayne street would pull with him ; Hunt said, then bloodshed will be the consequence ; Yeadon said, consequences be on your head; when Yeadon told Hunt he would be responsible for the advice, Hunt replied he had given the.advice, and would stand by it.
    
      Cross-examined. — He said Yeadon threatened no more force than was necessary to effect a levy.
    
      C. J. McLellan, sworn. — Testified, was not present on Friday, when the sheriff came: said he saw him the next •day ; heard Page say he had a lien upon the property ; Page asked the deputies their names, and they refused to give them ; Page treated Ryan civilly; put his hand upon him lightly; Ryan told him there must be actual resistance ; Page asked him what was actual resistance ; did not hear Ryan’s answer; Ryan took hold of a chair, and Page did so at the same time, and put his hand on Ryan’s shoulder, and said he resisted.
    
      Cross-examined. — He said Ryan was satisfied with the resistance ; he is an assistant; strikes the call in the morning for breakfast.
    
      In reply. — Mr. Yeadon, re-called, said the deputies withheld their names by his direction, as Col. Hunt had threatened to prosecute them.
    
      B. F. Flemming, sworn. — Testified, he is a director of the hotel company ; in October last he took an account of stock, amounted to about $1600; a list was produced, which he recognized as in his handwriting.
    Here the evidence closed.
    His Honor the Recorder charged the jury, that whatever irregularities there may have been in taking out the execution, it was regular on its face; that the sheriff was bound to execute it, and all who resisted its execution did so at their peril. That the instrument relied upon by defendant was not a lease ; that Page was not lessee, but the agent of the company; that his possession was their possession ; that the furniture in the hotel was liable to Cameron’s execution ; and that the sheriff, in levying on the same, was in the due discharge of his duty. Upon this view of the case, as the resistance was clearly made out, and not disputed, the Recorder thought they were bound to find the defendant guilty. He, however, submitted the case to the jury, upon a review of the evidence. The jury found defendant guilty.
    The defendant now moved for a new trial, on the following grounds:
    1. Because his Honor charged the jury, that in law, the contract by which the defendant held possession of the goods levied on, gave him no right to present possession, but that the hotel company might, at any time during the term, eject him and leave him no remedy, but on an action for damages: Whereas, the defendant claims, that his possession, formally delivered under an executed contract, was obligatory upon the hotel company, and their general creditors.
    2. Because his Honor charged, that according to the law of the case, as thus stated, the jury were bound to give their verdict for the State. Whereas, the defendant contends, that the jury were the proper judges in a criminal case, both of the law and the facts.
    3. Because the sheriff had not the original execution, but an execution on wliich the entry was untruly made, and a second execution, while the first was in existence, and not returned to the clerk, and it was, in fact, not the genuine execution.
    4. Because the sheriff was a trespasser, having attempted to break an out-side door lock, and did.actually break an out-side cellar door, and forced an entry.
    5. Because the facts proved, justified the defendant in what he did, and he was entitled to his acquittal.
    Richardson, for the motion,
    contended that the agreement between the parties in this case, was a lease, and on this question cited 3 Blackstone’s Com. 317; (Tucker’s Ed.) Coke Litt. Lib. 1, ch. 7, sec. 58 ; 1 Cruise’s Dig. 244. The word “ term” is used as specifying defendant’s interest, not the time, but his interest for the time, and nothing appears in the instrument to the contrary. The only view to the contrary is, where the word “ contract” is used, which was intended to prevent him from underletting.
    But if there were any ambiguity, it is explained by the conduct of the parties, both when the contract was made and subsequently. That a lease was intended and accepted as such, is apparent from the minute book and letters to the defendant, which request him to visit Charleston and examine the plans, for the purpose of seeing how he could lease. Sundry letters advise Page that he was expected to lease, and that it would be much to his advantage.
    Subsequent to the burning of the hotel, Page was desired to relinquish his lease, and a committee was appointed to offer him $6000 to give it up.
    The letters, correspondence and inducements offered, all evince a lease. No particular language is necessary to constitute a contract of lease. Cited 5 T. R. 163. In 3 Salk. 223 and 2 lb. 587, a license to carry on a trade on a dock was held to be a lease.
    On the second ground, the sheriff was a trespasser in breaking an outer door to levy on goods to which the defendant had an exclusive right, and which, were insured by himself.
    Yeadon, contra,
    conceded that no particular form of words was necessary to a lease, but whether so or not, must be had from the intention of the parties.
    The original contract does not call the defendant a lessee . — that, after the hotel was rebuilt, was a new contract between Page and the Company, to commence from the day the building was completed, for seven continuous years.— The intention to let must be collected from the instrument, and here the contract was for the keeping of the hotel by Page, the defendant. The word “ term” may apply as well to a contract as a lease, and must be construed from the context. The word “landlord” only meant that he was keeper. He was not to contract debts on account of the concern. The word “ concern” is conclusive that it was not intended to let, but to pay him a portion of the profits. The Company held their meetings in the hotel. Page was to reside there with his family, free of board or rent. He could not then be a tenant, but was in fact a mere agent. Page was to manage under the supervision of the Company. The furniture was to be returned to the Company, which being common in leases, it was inferred that this was a lease, but this cannot control the whole context. Page had no fixed interest in the furniture. The Directors could compel him to dismiss a book-keeper, and the books were to be open to their inspection, which negatives the idea of a lease. The language used as to the division of profits, is not such as would be used to a tenant, but an agent or keeper. In addition to this, the nett profits might be drawn monthly; the words “ contract” and “ agreement” are used, and his care was to be personal, not transferrable. Throughout the whole instrument, he is regarded as chief servant, which assimilates the case to that of an overseer, furnished with agents, and to be paid at all events.
    The usual words of a lease are to “ farm” — “ let,” and the great principle is, that the landlord is not to be deprived of the right to occupy. The cases from 3. Salk. 233 and 2 lb. 587-8, in reference to a license to take the profits, imply an exclusive right to do so, which is not the case here. The case from 3 Burr, 1556, resembled this, and was held to be no lease. To constitute a léase, there must be an interest conveyed. Cited 3 McCord, 212, in which the party had exclusive possession, but like this case, to work on shares, without any interest in the freehold. Cited 2 Bailey, 581.
    Did Page treat this agreement as a lease 1 Had he so regarded it, would he not have recorded it under the Act of 18171 The original contract was dated in May, 1837 ; never recorded in the office of the Register of Mesne Conveyance, and too late in the office of the Secretary of State. Is this not an inference against a lease'? The second agreement is dated in July, 1838, and if a lease, would he not have recorded it 1 But even if a lease, the interest of the Company might have been sold, though the tenant had the present right of possession; the sheriff would not be a trespasser. Cited 2 N. & McC. 392.
    After the hotel was rebuilt by the fire loan, there was no furniture. Page, as a member of the Company, joined in the mortgage to those who loaned the money to supply it. If the notes were not paid in one year, the mortgage might be foreclosed. Could Page have thought, under these circumstances, that he had a lease for seven years— giving a right of levy and sale in one year, when he was a tenant for seven % As to the 3d ground of appeal, no one but a party to the record can take advantage of irregularity of proceeding. Cited 2 McCord, 390; 2 Nott & McCord, 211; 1 Hill, 368 ; 1 McCord, 116 ; Harper’s Law Rep. 457. Process regular on its face, is good, and justifies the sheriff. Cited 1 Salk. 273 ; 3 Lev. 443 ; 1 Bailey 441-457. The alleged irregularity in this case was dehors the record.
    Bailey, Attorney General, for the State.
    It is clear, from the authorities, that the agreement set up is not a lease ; although, perhaps, it is of little consequence whether it be so regarded, or not. As to the personal property, the furniture, and that only, is now in question; the contract is plainly executory, for the furniture was yet to be bought. In Doe vs. Ashburner, 5 T. R. 163, which was cited on the other side, the agreement was held not to be a lease, because there was no present demise. Can an agreement to operate in futuro in relation to mere chattels, not yet bought, amount to a lease of them l If so, then such lease would be void for fraud; at least as to the person from whom they were purchased. Cameron was one of the persons from whom the furniture was purchased, and a part of the very furniture which constitutes the consideration of his debt, was in the hotel at the time of the levy.— The defendant, nevertheless, resisted the levy of the execution upon any part of the property, and he was, therefore, properly convicted.
    B. F. Hunt, for the appellant.
    The material facts are, that the defendant was in the actual possession of the furniture of the Charleston Hotel, under the following agreement. (See agreement in margin.)
    The prosecutor, George S. Cameron, had obtained an execution against the Charleston Hotel Company, long subsequent to the time when Page took possession under his contract, and when he was in the exclusive occupation of the house and furniture. The furniture was mortgaged for $40,000, so that the equity of redemption only remained to the Company; and it was “ letten to hire” to Mr. Page. The judgment had been obtained in the City Court. The attornies were Smith and Richardson. The original execution was first lodged to bind, and then returned, and in the possession of the said attornies. Cameron, in the absence of the attornies, applied to R. Yeadon, of the firm of Yeadon McBeth, and they wrote out another execution without any substitution of attorney, or return, or production of the old execution, and procured the clerk of the City Court to sign it; he being inattentive, did not require the original to be produced, and then they lodged this new paper with the sheriff, and the plaintiff gave him a bond of indemnity, and directed him to levy on all the furniture in the hotel, costing $35,000 to $40,000. The debt and costs were about $900 to $1000, and he, the sheriff, proceeded to make the levy. Page then, through his counsel, Bentham & Hunt, tendered to submit his claim to possession to a jury, denying the liability of the furniture to levy, by a general creditor, as long as his lease or contract existed; and resisting the removal of the furniture, but offered the sheriff to allow him to sell all the right, title and interest of the Hotel Company in the furniture as it stood, but resisted its removal. This did not suit Cameron, who hoped to get the furniture out of the house, that the mortgagees, of whom he was one, might then seize it under their mortgage, and put Page to his action. Page resisted, by gently laying his hand on the sheriff, and it was for this he was indicted — for resisting a sheriff in the execution of his office ; and under the charge of the Judge, he was found guilty. He made the following points :
    1. That his contract was a lease or demise, giving him the right to present possession, and as the defendants in the action could not dispossess him, a general creditor could not do so by levy and sale.
    2. That the paper called an execution was a nullity, having been concocted without authority, and signed contrary to the Act of 1839, and to the common law, and the levy was a trespass.
    The counsel contended that Mr. Page held the furniture of the hotel, upon which the levy was made, upon a contract which secured to him the actual possession for a term not yet expired, and that the rule of law is, that a creditor only succeeds to the right of the debtor, and cannot take in execution and possession, wbat the debtor himself could not take and apply to the payment of his debt. This the counsel held to be a clear principle of law, for if it was not so, one making a contract, by which he parted with the right of possession and the actual possession of his goods for a consideration, could defeat his bargain by suffering a judgment to be entered against him, and an execution to be levied, and the goods seized and removed. So that the whole question in issue, turns upon the enqniry, could the Hotel Company, the defendant in execution, lawfully dispossess Mr. Page, and apply the furniture levied upon to the payment of their debts, leaving him only his action for damages for a breach of their contract 1 Had the Hotel Company made the attempt, would Page have been guilty of a trespass in resisting it % The answer concludes this case. If Page might lawfully resist the attempt of the Hotel Company to dispossess him, he might lawfully resist the attempt of the sheriff to seize and carry away the furniture, under an execution against the Company. The reason is clear, because the Company had parted with their possession prior to the lien of the execution, for a term not yet expired.
    In support of this view of the case, Mr. H. reviewed the history of the contract, and referred particularly to the various letters addressed to the defendant, on behalf of the company, and resolutions passed, for the purpose of shewing that the company intended to lease the hotel — as also to the fact, that the company were bound to re-build and furnish the hotel after the fire; that he was termed the tenant of the company, and that a committee was raised to negotiate with Mr. Page for the relinquishment of his present lease, and for so doing to offer him compensation for personal services. The following authorities were cited. Chitty on Contracts, 313; 10 J. R. 336; 16 J. R. 172; 1 id. 267 ; 9 id. 108 ; 16 id. 16 ; Kent’s Com. 557. The authorities all concur in giving to such a contract the legal effect of alease. Cited Cro. Eliz. 486. “ Have, possess, occupy,” (fee., a good lease. 3 Bulst. 204; 3 Salk. 223. Intention of the parties decides if it be a lease. Poole vs. Bentley', 12 East, 168; 15 id. 244 ; 3 Taunton, 65. “ Hold, and enjoy,” a lease. 5 T. R. 163. If words be ambiguous, acts of the parties, done under it, is a clue to their intention. 8 Bing. 181; 2 Abr. 374; Chitty Gen. Practice, v. 1, p. 241; Viner Abr. License, 92. “License to enter,” is alease. 8 East, 308; 7 Taun. 374.,
    The counsel also contended, that as to the furniture levied on, Mr. Page, as against the hotel company and their general creditors, held it by the same tenure that he did the hotel; that a general creditor could not lawfully levy upon and remove chattels so situated, and if not, that Page’s resistance to the levy was lawful.
    It was contended that goods and things personal maybe letten to hire, leased, pawned, and thus disposed of, so that the owner has only a reversionary interest in them, the right of present possession being transferred; and that pending this right in a third person, their personal goods cannot be taken in execution.
    The creditor acquires no rights by his execution against third persons; and as the hotel company, by their contract, was estopped from divesting Mr. Page of the furniture, so were their execution creditors.
    
      The furniture of the hotel, by the agreement, was to be supplied and “ placed in the hotel before the house shall be considered ready for occupation.” It was stipulated that no interest of the capital invested in the building and furniture was to be charged; and if the hotel was burned “ the same shall be re-built and re-furnishedalso, “ that the furniture shall be procured and purchased by the hotel company, and shall be considered a part of the capital invested,” and was to be returned by him. It is thus clear, that the furniture was let to hire, in the same manner as the building; and if the building was leased, so was the furniture. Cited Bro. Abr. Leases, A ; Comyn Dig. Title Ex’n. vol. 4, 121; Bro. Abr. Title Pledges, 24; Id. Ex’n. 107; Dyer Rep. 67; Taylor vs. Cole, 3 T. R. 278 ; 5 J. R. 335 ; 2 Anst. 381; 5 T. R. 420 ; 8 East, 467.
    It was not argued by the counsel, that any right which a defendant has in property, which gives him a present title to possession, might not be taken in executi m ; but where the right of present possession is¿n a third person, the sheriff cannot divest the party, and take the property in execution for the debt of another, even although, after the expiration of the term, the reversion may be in the defendant. A sheriff must take actual possession, and deliver actual possession to the purchaser at his sales, but he must take it from the defendant, or one who cannot hold against the defendant. If Page could hold against the hotel company, he could hold against the sheriff levying for their debt. See Willes Rep. 131; 2 Tidd Prac. 916. The interest only of a defendant can be taken, and if his interest does not extend to a right of possession, it cannot be taken ; and even in case of a joint tenant, the other party cannot be dispossessed. 1 Shower, 169; Doug. 650. A creditor may go into equity, and get an account. 3 Atkyns, 739.' Cameron could in equity have compelled Page to account and apply any thing due the company to his debt.
    Where parties are tenants in common, each has a right of present possession ; see 5 J. R. 343 ; and the sheriff occupies the place of the defendant. 2 Nott and McCord, 347; 1 McCord, 399; id. 323.
    It was intimated that Page was a co-partner, taking a share of the profits ; but admitting it, he was co-partner only as to the keeping, not in' supply of the capital of the hotel. If he was indebted to Cameron as co-partner, he should have been sued as such. Cameron is estopped by his own suit, from charging Page as co-partner in that matter. An execution against a co-partner only reaches the interest of the defendant, and the purchaser is only in, of the defendant’s rights.
    Page offered the sheriff, as he admits, every opportunity to sell the right, title and interest of the hotel company, as the furniture stood, leaving it to the law to decide what that was, or he tendered to submit the matter at once to a jury, which every sheriff has the right to impannel to try his right to levy, if it is disputed. “ If he doubt whether the goods shown to him are the defendant’s, he, the sheriff, may summon a jury de bene esse, to satisfy himself.” See 4 Comyn Dig. 221, 222 ; Dalton’s Sheriff, 146 ; Gilbert on Ex’n. 21; Bacon Abr. Ex’n. 4 T. Rep. 633; 7 id. 177.
    The case of Maverick vs. Lewis & Gibbes, has been relied on as in point, but there is little in common in the two cases, except that the papers in both are badly drawn. That case rested on the pleadings. The defendant was sued for rent on a covenant for a lease, and his defence really was, that the lessor had incumbered the property by a previous contract with one Hunter, who, being in possession, claiming under that contract, hindered and prevented Lewis and Gibbes from enjoying the premises, and so they ought not to pay rent. But the form of the pleadings made the case depend on the single issue, was the contract with Hunter a prior lease, when, in fact, the proper question was one of quiet enjoyment. But that case is past. The deed of Maverick was not, in terms, a license to enter and take the profits, and so may well be said not to convey an interest in the freehold; and the court remarks there was no stipulation he should live on the land. Here the sole and exclusive management and residence is agreed for. But it was, in Maverick’s case, insisted he was to “ allow” Hunter a fifth; but here Page is to receive all, and share with the company. Thus he is to occupy the premises,.have the sole management, and receive all the income, and pay the company all over a fixed amount, in lieu of interest and rent. ■ How, then, can Maverick’s case be an authority in this 7
    
    The case of Maverick had this feature; Gibbes recognized Hunter’s contract, “ and stipulates to allow the same.” Again, he pleaded a demise to Hunter of the whole, which was not true, for Hunter’s agreement was not a disposition of the whole estate for the term; all that the case decides is, that Hunter had no right, under his contract, to oppose the entry of the defendant under his lease. In this case the company had given up the entire management for seven years, to Page, and the creditors of the company were bound by this contract.
   Curia, per

O’Neall, J.

Before stating the conclusion to which we have come on the legal questions in this case, it is well enough to say that the offence made out by the proof is as slight an dne as can demand legal punishment; and that the whole conduct of the defendant, although it may be legally wrong, is yet free from moral blame. He is entitled, so far as we can judge from the facts before us, to the favorable consideration of the community into which he came as a stranger, confiding frankly in their kindness and generosity; and such a claim never has been, and we hope never will be, disregarded.

Two questions will be considered. 1st. Was the objection to the ft. fa. under which the sheriff acted, such an one as to destroy its authority 7 2d. Was the contract of the defendant with the Charleston hotel company, either a lease or a contract conferring on him the exclusive right of possession for 7 years'? 1st. The first question presents little difficulty. The rule is, if the process be void, it is no justification to the sheriff, but if it be merely irregular, then it is. It was irregular to issue a second ft. fa. when the first was not returned; but there is no doubt it was not void. Upon its face it was a ft. fa., issued in conformity to the judgment of a court, in a case of which it had jurisdiction. This was all to which the sheriff could look, Harvey vs. Huggins, 2 Bail. 252, 265, 2d. The second question presents more difficulties.' It is conceded that the mere words or form are immaterial on the question of lease. The definition given in a note to 12 Petersdorf’s Ab. 93, is about as accurate as any which we can have. “ A lease for years is a contract between the lessor and lessee, by which the lessor contracts to grant the possession and enjoyment of land, or other hereditaments of a demisable nature, for a period of yeais certain ; and in most cases the lessee agrees to render to the lessor a rent in money, or any other kind of payment, at the end of stated periods of a year or more, during the term. Kent is not essential to the contract, because, from favor, or from valuable consideration given to the lessor at the time of making the lease, a lease, beneficial in its nature to the lessee, may be made without reserving any rent.” The contract under which the defendant claims to hold possession of the hotel and furniture, will be first considered under the question whether it can be a lease. All the cases agree in saying that this is a mere question of construction, and that there is no artificial rule by which it is to be decided. The intention of the parties is to be collected from the whole instrument ; and if it was intended as a lease, then is so to be regarded, otherwise not.

It is trué, that for seven years he was to “ reside with his family in the hotel, (free of all charge for board or rent;”) “ conduct the same in the manner contemplated by the parties, and to have the whole and exclusive management thereof,” and that the furniture, at the end of the term, should be returned to the company by the defendant. These provisions, standing by themselves, do not make a lease. It is true, the defendant is to have possession, but it is to “ manage and conduct.” He is the agent of the owners, acting for them. He has not the enjoyment, in the sense in which the term is employed in the definition. It is not for himself that the product is to be; it is for the owners, and out of it, by another part of the agreement, he is to be paid for his services. This is compensation for services to be rendered on and about the premises of the company ; but there is nothing like the enjoyment of the same in his own right, by the party in possession.

It is true, rent is not essential to a lease; for, from favor, or valuable consideration, the tenant may have a lease without any render. Yet that must be in a case where a. lease was clearly intended. When, upon construction, it be doubtful whether a lease was intended or not, then it constitutes a very important circumstance, that rent was not reserved, eo nomine or substantially. In Harker et al. vs. Birkbeck et al., Burr. 1556, the words, “ doth let or set,” were used ; and in another part of the paper, Harker and his partners agree to pay Mrs. Moore or her agent, one sixth pig of lead, both at the ore hearth and slaghearth, for which her agent agrees to let them have the ground in which the ■ lead mine was the length of Mrs. Moore’s lease. She was to find a smelting mill, and to have liberty to inspect the workings whenever she pleased. The partners were not to cease working for two months; and Mrs. Moore was to carry one-eighth of this bargain. The court, through Lord Mansfield, said of this paper, “ it is no lease, because nothing is reserved to Mrs. Moore.” “ It rather seems that the legal property continued in Mrs. Moore ; so that it seems to be either an agreement for an assignment., or else a declaration of trust; an equitable interest, leaving the legal property in Mrs. Moore.”

This case, in some respects, is very analagous to the one before us, and shews that a mere participation in profits, with a possession which does not exclude the owner, will not make a lease.

Looking, however, to this agreement, and construing it from its own provisions, I have no difficulty in saying it never was intended to be a lease. For although it be true, that the word “term,” which is an appropriate word to designate a lease-hold estate, be used, vet it is perfectly clear, that like the words “ let or set,” it will be controlled by the plain meaning of the contract. Indeed it may mean the end of the period for which Page was employed, as well as of any interest which he had.

The agreement states that the company and Page had agreed “ for the keeping of the hotel,” “ for the term of seven continuous years ;” “ that Page, as the landlord, shall provide for the hotel,” “ shall contract no debts on account of the concern, without the consent of the directors“ reside with his family in the hotel, (but free of all chárgefor board or rentkeep constantly in his employment a bookkeeper, who shall keep the accounts; “ but if the directors disapprove of him, he shall be discharged by Page; the books to be open for the examination of any of the directors.” These provisions certainly do not indicate any thing like a tenancy ; they are the very words by which we would empower any agent to act for us, and by which we would undertake to direct and control him in the management of our affairs.

These are followed by provisions for his compensation, varying according to the profits, but at last securing him, in any event, a certain compensation of $4000 per annum. Look to this, on the question of tenancy, and it would be strange, indeed, that the man, hired and paid to manage an establishment, should be its tenant. Compensation for services is the general criterion by which we ascertain that one acts for another.

Another provision in the contract is, that Page’s interest is personal, merely, not transferable to any one, not liable for his debts; and if Page should die, that compensation should be made to his representatives. This provision, in each and every one of its parts, is at war with the notion of a lease, or any legal interest, and must effectually destroy all such preténsions. The case of Maverick vs. Gibbes, 3 McCord, 211-217, is exactly the case before us; and I agree with Judge Col cock, when he said, “ Now here was an express contract for the personal services of Hunter, giving him no interest in the soil, and had he died, his executor would have had no power to enter. There would have been an end to the contract. He was to take charge of the farm and manage it in the best manner. There is no stipulation that he shall live on it, or be found in provisions; much less that he shall exclusively occupy any part of it. His intrusion was illegal, and the lessee, Gibbes, had the same right to expel him from the house, as if he had been a stranger.”

After this examination of the defendant’s contract, I am satisfied that it is no lease.

If it be not a lease, it seems to me tbe contract can have no effect at law, as against the rights of the owners to possession. In shewing that the contract was not to be regarded as a lease, it lias been shewn that Page was in possession as agent of the owners, the hotel company, to manage for them. It follows from this, that he has no legal inter-est in the possession which could be set up against an execution for the debt of the company. His contract is with them, and for them, and when broken, his remedy at law is by action against the company.

The motion,for a new trial is dismissed.

Evans, Butler and Wardlaw, JJ., concurred.  