take under the earlier, as by descent, by will, by grant, or by voluntary transfer of possession: Ramsey v. Glenny, 45 Minn. 401; 22 Am. St. Rep. 736, and note; Alexander v. Gibbon, 118 N. C. 796; 54 Am. St. Rep. 757. The possession of land by virtue of a verbal contract of sale, is the possession of the vendor; but after conveyance the vendee may take advantage of such possession, in order to establish adverse possession: Valentine v. Cooley, Meigs, 613; 33 Am. Dec. 166.

HILL V. HATCH.

[99 TENNESSEE, 39.]

EXECUTIONS-LEVY UPON PROPERTY IN THE CUSTODY OF THE LAW.-When an officer of the law, acting under police rules or without them, takes from his prisoner personal property either for safekeeping or to remove from his control that which he might use in effecting his escape, it is not subject to seizure under civil process. It is not necessary to the application of the rule that the property in question should be connected with a criminal charge. Casselberry & Martin, for Hill.

Bell & Horn, for Hatch.

89 BEARD, J. In this case, an attachment issued at the instance of plaintiff in error against the defendant in error, was levied by service of garnishment on certain members of the police force of Memphis. At the time of the service the defendant in error was in their custody, under arrest, upon a 40 criminal charge which had been preferred against him. Upon his arrest, these officers, whether of their own motion or under the police regulations of that city does not appear, removed from the person of the defendant in error, or required him to remove and deliver to them, certain articles of personal property of considerable value. This property was in no way connected with the charge under which his arrest was made, and it was this which the garnisheeing creditors sought to impound. These facts were pleaded in abatement of the writ. Upon the trial the circuit judge sustained the plea and dismissed the attachment. His action in this respect is assigned for error in this appeal.

The question presented by this record has received the attention of a number of courts of this country, and, with regard to it, there has been some diversity of judicial opinion. We are satisfied, however, that the better policy, as well as the weight of authority, is with the ruling of the trial judge. In disposing of it, we do not deem it necessary to determine the right of a police officer, upon arresting a prisoner, of his own motion, to

take from him articles of value, or the reasonableness of municipal regulations which may authorize this to be done. It may be conceded, for our present purpose, that in either case this may be done, and that a wise precaution requires that it should be done. But when an officer of the law, acting under police rales or without them, takes from his prisoner personal property, 41 either for its safekeeping or to remove from his control that which he might use in effecting escape, a sound public policy, we think, requires that, for the time, it should be safe from seizure by civil process. We speak now of such property as is in no respect connected with the criminal charge. It would be a dangerous temptation to eager, and sometimes unscrupulous, creditors to resort to the machinery of the criminal courts against their reluctant debtors, if it were once understood that whatever of value was taken from the person of the party arrested by the officer having him in charge, could be at once impounded by the levy of an execution or attachment. Such a practice, we are sure, would likely be productive of results oppressive to the individual and shocking to the moral sense of the community. In support of this conclusion, we refer to Commercial Ex. Bank v. McLeod, 65 Iowa, 665; 54 Am. Rep. 36; Richardson v. Anderson, Tex. Civ. App., Jan. 20, 1890; Dahms v. Sears, 13 Or. 47; Robinson v. Hov ard, 7 Cush. 257; Morris v. Penniman, 14 Gray, 220; 74 Am. Dec. 675.

The opposite view of this question has been taken by the supreme court of New Hampshire, and presented with great force in Closson v. Morrison, 47 N. H. 482; 93 Am. Dec. 459. After careful examination, we are satisfied that the sounder policy is announced in the cases cited as authority for our conclusion. Judgment affirmed.

EXECUTION-PROPERTY IN CUSTODY OF LAW.-It is very clear that all property in custody of the law is not subject to any seizure or interference by officers acting under writs of execution; but some difficulty may be experienced in determining when property is so within the custody of the law as to be shielded by this rule: Note to Walling v. Miller. 2 Am. St. Rep. 403; Hackley v. Swigert, 5 B. Mon. 86; 41 Am. Dec. 256. Custody of law is such custody only as an officer has a right to assume over specific property by virtue of law, or by virtue of the mandate contained in his writ: Gilman v. Williams, 7 Wis. 329; 76 Am. Dec. 219. See note to Hardy . Tilton, 28 Am. Rep. 35, 36. As to property in the hands of an officer who took it from a prisoner the cases are not in accord as to whether it is subject to attachment or execution: Ex parte Hurn, 92 Ala. 102: 25 Am. St. Rep. 23, and note: Morris v. Penniman, 14 Gray, 220; 74 Am. Dec. 675, and note. The better rule is adhered to in the principal case: Freeman on Executions, 2d ed., sec. 130 a.

STYLES V. HARRISON.

[99 TENNESSEE, 128.]

A JUDGMENT RENDERED ON SUNDAY is not erroneous merely; it is void.

William Fitzgerald, for Styles.

J. S. Duvall, for Harrison.

128 BEARD, J. The only question in this case is, Is a judgment rendered on Sunday in one of the courts of this state valid?

V.

It was a maxim of the common law that dies dominicus non est dies juridicus: Broom's Legal Maxims, 21; Swann Broome, 3 Burr. 1595. Accordingly, no valid judgment can be rendered on Sunday: 1 Black 129 on Judgments, sec. 182; 1 Freeman on Judgments, 138; 24 Am. & Eng. Ency. of Law, 577; Ex parte White, 15 Nev. 146; 37 Am. Rep. 466. The cases all show that such a judgment is not simply erroneous, but is absolutely void: 1 Black on Judgments, sec. 182; Houghtaling v. Osborn, 15 Johns. 119; Arthur v. Mosby, 2 Bibb, 589; Davis v. Fish, 1 G. Greene, 406; 48 Am. Dec. 391; Blood v. Bates, 31 Vt. 147; Chapman v. State, 5 Blackf. 111.

While now, for the first time, the question here considered has directly arisen in this state, yet, in the opinion of this court in Elrod v. Gray Lumber Co., 92 Tenn. 476, in distinguishing the statute under consideration in that case from a somewhat similar statute construed by the supreme court of Wisconsin, in Lampe v. Manning, 38 Wis. 673, this court clearly indicated its opinion that Sunday was dies non juridicus.

It follows that the circuit judge was right in discharging from confinement the petitioners, who were illegally restrained of their liberty in the county workhouse, for the nonpayment of fines adjudged against them on Sunday, for alleged commission of certain misdemeanors, and his judgment is affirmed.

JUDGMENT RENDERED ON SUNDAY.-The verdict of the jury may be received on Sunday, but a judgment rendered on that day is vold, and cannot be enforced or sustained: Parsons v. Lindsay, 41 Kan. 336: 13 Am. St. Rep. 290; Shearman v. State, 1 Tex. Civ. App. 215; 28 Am. Rep. 402. A criminal judgment of a justice of the peace rendered on Sunday is void: Ex parte White, 15 Nev. 146; 37 Am. Rep. 466; note to Coleman v. Henderson, 12 Am. Dec. 291.

MEMPHIS BARREL AND HEADING COMPANY V. WARD.

[99 1ENNESSEE, 172.]

CORPORATIONS-EXECUTIONS AGAINST INSOLVENT, NO PREFERENCE CAN BE GAINED BY.-The levy of an execution upon the property of an insolvent corporation after it has suspended business and moved to file a bill in equity for the distribution of its assets, does not create any preference in favor of the judgment creditor over other creditors who have not obtained any judgment nor levied any writ.

CORPORATION-TRUST FUNDS.-The assets of an insolvent corporation become, from the date of its assured insolvency, a trust fund for equal distribution among its creditors. Afterward none of them can obtain priority by recovering a judgment and levying an execution against the corporation.

Perkins & Watson, for Barrel & Heading Company.

Scruggs & Henderson, for Ward.

172 MCALISTER, J. The question presented for determination upon this record is whether the Memphis 173 City Bank, by virtue of a judgment recovered before a justice of the peace, and the levy of an execution upon certain property belonging to the Memphis Barrel & Heading Company-an insolvent corporation is entitled thereby to priority of satisfaction out of its assets.

The facts necessary to be stated are that, on October 21, 1895, the Memphis City Bank recovered a judgment before a justice of the peace against the Memphis Barrel & Heading Company for the sum of seven hundred and fifty-two dollars. Affidavit was made that the company was about fraudulently to dispose of its property, and thereupon an instanter execution issued and was levied upon certain personal property belonging to said insolvent corporation.

This levy was made at 11:15, October 21, 1895. On the same day, and at 12:10, the Memphis Barrel & Heading Company filed its bill in the chancery court of Shelby county, alleging its insolvency, and praying that its affairs might be administered and its assets distributed among its creditors, under the orders of said court. This bill recited that on the morning of October 21, 1895, the directors of the Memphis Barrel & Heading Company adopted a resolution declaring that said corporation was insolvent and unable to further carry on its business, and authorizing the president of the company to file a bill in the name of the company in the chancery court for the settlement of its affairs as an insolvent corporation.

174 It will be observed that, about one hour before the com

pany filed its insolvent bill, the Memphis City Bank had recovered its judgment, and had caused an execution to be levied upon the property of the company. The Memphis Barrel & Heading Company sought, by supplemental proceedings, to annul this judgment and vacate the levy, upon the ground that, at the time of said judgment and levy, said corporation was insolvent and its assets had become a trust fund for the benefit of all its creditors.

The chancellor, upon final hearing, adjudged that the Memphis City Bank, by reason of the levy of its instanter execution, had acquired a priority of satisfaction over the other creditors of the Memphis Barrel & Heading Company, out of the property impounded by its execution.

The record shows that prior to October 17, 1895, the complainant corporation was engaged in the manufacture of barrels, kegs, boxes, etc., in the city of Memphis. On said date the secretary, treasurer, and general manager of the company, after flooding the business community with worthless commercial paper, absconded and fled to Honduras. An examination into the affairs of the company revealed the fact that it was irretrievably insolvent, and on October 18, 1895, the mill was shut down with a view of permanent suspension and a final liquidation of the affairs of the company. Ward, says one witness, was the general manager and financial head of the concern, and when he went, the concern practically 175 went with him. On the morning of October 21, 1895, the directors of the company assembled and adopted the following resolution, to wit:

"Whereas, the Memphis Barrel & Heading Company is unable to meet its pressing liabilities, and is, in the opinion of the directors, now insolvent, and unable to further carry on its business, it is resolved that the president of said company be, and he is hereby, authorized to file a bill, in the name of said company, in the chancery court of Shelby county, Tennessee, to administer the assets of said corporation."

In pursuance of said resolution and at 12:10 on said October 21, 1895, a general creditors' bill was filed in behalf of said corporation, which was sustained by the chancellor, and a receiver appointed to take charge of its assets. On the same day, to wit, October 21, 1895, the Memphis City Bank recovered a judg ment before a justice of the peace against said Memphis Barrel & Heading Company for the sum of seven hundred and fiftytwo dollars, and at 11:15 upon affidavit filed that the company was about, fraudulently, to dispose of its property, an instanter