
    Columbia, April Term, 1813.
    John McCants vs. Ulysses Rogers.
    Levy, for the Motion,
    
    Blanding, Contra.
    
    
      Fi. Fa. in Assumpsit. k
    
    where the plam tiff enter merit and extlution an appeal on thepart of defendant; and, before such appeal be dismissed, A. lodges, his execution against defendant, (but subsequently to the lodging of the plaintiff’s,) ti.e execution o. the plaintiff will have priority. In other words, an appeal does not prevent the lien of an execution lodged pending such appeal.
    This was a rule against the sheriff, to compel him to pay over monies which he had collected, belong-ins: to the defendant; to which the sheriff made a . . special return. That he had monies m his hands, ^0, ^ut in his office also, an execution of «/?„ Blanding & Co. against Ulysses Rogers.
    
    The facts were, that Mr. Blanding had obtained a judgment against Rogers, from which judgment Rogers appealed to the Constitutional Court; and pending that appeal, Mr. Blanding entered up his judgment, and lodged his execution in the sheriff’s. office: pending this appeal, and after Mr. Bland-ing’s execution was lodged, the plaintiff, McCants. lodged his execution.
   Smith, J.

The court below ruled the sheriff to pay over the monies to Mr. Blanding’s execution, it having been decided so by the Constitutional Court in Charleston, in a similar case of JDenoon and O’Hara. The court having already decided the point, I am bound by that decision. Motion overruled.

Justice Colcock; concurred.

Brevard, J.

In the case of Denoon vs. O’Hara et al. determined in Charleston by the Constitutional Court of Appeals, in 1805, after verdict for the plaintiff, the defendants moved for a new trial; and during the pendency of the motion, the plaintiff died. But before his death, judgment had been, entered up, pursuant to a rule of court, which au-thorised the entry of judgment and taking out exe-eution, to bind the property of the defendant, pending the motion for setting aside the verdict.

It was contended that the judgment entered up under such circumstances was void; and that the death of the party plaintiff, prior to the determination of the motion for a new trial, by which the judgment was suspended, though it would not abate the action, would nevertheless suspend any proceedings upon the motion, till the representatives of the deceased should revive the proceedings by scire facias, or other process. The decision of the court was, that the death of the plaintiff did not interpose any legal impediment to the hearing and determining of the matters submitted by way of appeal; and that the case might proceed as if no such accident had taken place. Jlct of Assembly, 1785, P. L. 381,

With regard to the judgment, entered up pend* ing the appeal, the court (Waties, Bay, Brevard\ and Wilds, justices,) were of opinion that the same might be considered as a judgment nunc pro tunc, after the motion should be decided in favour of the party in whose favour it should be entered up. But they inclined to think (according to my understanding of their opinions,) that no judgment could be legally entered up, until after the determination of the motion submitted, notwithstanding the rule of court which allows the entering up of conditional judgments. I was then, and am still of opinion, that no such judgment can be legally entered up, before the motion to the Constitutional Court of Appeals has been heard and decided. But inasmuch r . as the judgment may be entered up after the ap-pea] decided nunc pro tunc, I am not disposed to question the judgment which has been thus entered up by anticipation. The point having been ruled in the case cited, on which occasion the authorities were carefully examined; I am not willing to set the question again afloat, although I entertain some doubts whether the rights of other judgment creditors, who fairly obtained regular and legal judgments, prior to the time when this judgment could have been lawfully entered up and signed, nunc pro tunc, and issued executions thereupon, are not upon legal principles to be preferred to a party who claims by relation, and founds his claim on a fiction of law.  