
    Charleston,
    1816.
    Nathaniel G. Prime vs. Samuel Yates et al. Attaching Creditors of Lockwood.
    Ford & Simmons, for the Motion.
    
    >Prieoleau & Cheves, Contra.
    
    rale denv-ered toa for the use person^is1 transfer from the date of the delivery, if the vendee consents. if the ven-dec does not accept it, the prop -rty snail not be divested; but, if he does accept it, it shall have relation back to the time of the
    This was a feigned issue, made up under the attachment law, to try the question of property in the schooner Mary- Ann, which was attached by defendants, as creditors of Lockwood, and which the plain- ^ claimed as his property, on the ground that it had been legally conveyed to him, prior to the lev- . „ , , yuig oi the attachments,
    
      Lockwood was in Charleston with the schooner Mary Ann, of which he was the owner. He was indebted to Prime, the plaintiff, who lived in New-1 York. His father-in-law, Blagge?, who also resided in New-York, had become responsible to Prime for this debt. Whilst Lockwood was preparing for sea, he received a letter from Blagge, pressing to be relieved from this responsibility. On the 19th of March, 1808, Lockwood executed a bill of sale for three fourths of the schooner Mary Ann to Blagge, and enclosed this bill of sale in a letter to Blagge, bearing date 15th of March, by the Atalanta. He afterwards executed another bill of sale of the whole schooner to Blagge; and on the eighth of April, 1808, wrote a letter to Mr. Joseph Walden, of Charleston, and enclosed this bill of sale for Blagge. On the same day, he wrote another letter to Blagge, informing him that he had left this last bill of sale with Walden for him, and that the first bill of sale which was sent by the Atalanta for three fourths was a mistake.
    
      Lockwood about this time put to sea in another vessel, and never returned. Mr. Walden, the day after he received the bill of sale took possession of the vessel for Blagge; but had received no letters or other powers from Blagge, constituting him his agent.
    On the 14th of April, and whilst the bill of sale remained in Walden’s possession, the defendants, who were creditors of Lockwood, levied their attachments. Afterwards, Blagge, on receiving the first bill of of sale, assigned the three fourths, of the. vessel to Prime, the plaintiff; and, on receiving the other bill of sale, assigned over the residue m discharge of Lockwood’s debt. In the last letter of Lockwood of the 8th of April, to Blágge, he, among several other things, hardly to be seen in transactions intended to be pei’fectly fair, mentions the amount of the debt, said to be due from himself to Prime,
    
    It was contended on the part of the plaintiff, that the debt due from Lockwood to Prime, and for which Blagge was responsible, was a bona fide one, and that the transfer made by these bills of sale, prior to the attachments, was good to vest the property of the schooner in the plaintiff, notwithstanding the assent of Blagge had not been given to the contract, contained in the bills of sale, until after the attachments were levied.
    On the part of the defendants, it was contended, that a transfer, under these circumstances, not only indicated fraud in the transaction^ on which the jury had found in favour of 'defendants, but that, by law, "the property of the schooner could not vest in Blagge, by virtue of these bills of sale, until he had been informed of them, and had actually given his assent.
   Nott, J,

The question in this case is, whether Prime the vendee, or Yates and others the attaching creditors of Lockwood, are entitled to the property attached, The first enquiry will he, whether Lockwood by transferring the vessel to Blagge, under whom Prime holds, had completely divested himself of any property in her. If he had, the claim of the creditors must fail, because they could have no claim to property which did not belong to Lockwood, unless there was some fraud in the transaction, which would render the bill of sale to Blagge, void, as against the creditors, although good between the parties ; which will be the second point for consideration.

With regard to the first, it appears to me, that there was such a transfer by Lockwood, as amounted to a complete divestiture of the property. He executed a bill of sale to Blagge, and delivered it to Mr. Walden, for his use ; which bill of sale, together with a letter informing him of the transaction, was forwarded to him in New-York. The key of the vessel was also given to Walden and he took possession of her, and had her in possession for Blagge, when the attachments were served; as he has sworn in his return to the attachments, and his subsequent examination.'

It is laid down by Lord Coke, 3d Coke’s Reports, 26. Butler vs. Baker, 5th Do. 85. 1 Salk, 301, 1 Binney, 502. Shepherd’s Touchstone, 58., that a deed delivered to a stranger for the use of a third person, takes effect immediately. If the vendee does not accept it the property shall not be divested; but, if he does accept, it shall have relation back to the time of. delivery. If it takes effect immediately upon the delivery, the vendor can not revoke it; and, unless it vested in the vendee, he could not be divested, which Lord Coke says, is the effect of nonacceptance.

No case can speak stronger language in favour of such a principle, than the one now before us. Blagge, writes to Lockivood, that Prime had recovered a judgment against him, as his security; and that, unless he affords him relief, he must go to gaol. It appears by Lockwood’s letter, that Prime agreed to take negroes, vessels, or any other property, in discharge of the debt. Lockwood, therefore, executed the bill of sale of the vessel as abovementioned, which was immediately assigned to Prime, and Blagge was released from the judgment. Surely Lockwood had not the power after having thus delivered the bill of sale, and given possession of the property, to defeat ail the subsequent transactions, and divest Prime of the property, by revoking what he had done. He had nothing, therefore, which the creditors could attach. If the consent of Blagge was necessary, it must be presumed, from all the circumstances of the case. He was pressing Lockwood to relieve him from an execution, which was hanging over his head. Prime had agreed to take negroes, or vessels in payment. Assent, therefore, was previously given. But in any point of view, if the parties to the transaction agree to it, no other person can say the sale shall not take effect. Unless, secondly, it was done with a view to defraud his creditors.

On this ground, I shall only observe that if the jury had been properly directed on the first point, and the case had been submitted to them, only on the ground of fraud. I should not have been disposed to set aside the verdict. But as I think the opinion of the court was incorrect on that point, and the jury may have been governed by that opinion, without considering the other ground, I am of opinion a new trial ought to be granted, that the question may be again submitted to a jury to try the question of fraud only.

Justices Gantt and Grimke concurred with Justice Nott.

Smith, J. dissented.

Grimke, for Motion.

Attorney-General & Hunt, Contra.  