concurring—
The preamble to the Act of 1822 sets forth, that “ a contrariety of decisions having taken place in the different Courts of this State, as to the time when the property, of the party against whom judgment is entered, shall be bound, &c.” Enacts, “ that from and after the passing of said Act, all property of the party against whom a verdict shall be rendered, and a judgment signed thereon, in conformity to the provisions of the 26th section of the Act of 1799, shall be bound from the signing of the first judgment, in cases where no appeal is entered ; but in cases where an appeal is entered from the first verdict, the property of the party against whom the verdict is rendered, shall [not] be bound, except from the signing of the judgment on the appeal — except so far as to pirevent the alienation, by the party, of his, her, or their property, between the signing of the first judgment and the signing of the judgment on the appeal.” Prince, 451.
I have transcribed only so much of this Act as relates to the question to be decided, which is this: Two judgments were obtained at the same Court, from one of which an appeal was entered, and prosecuted to a second and final trial. The defendant in both judgments, between the signing of the first judgment and the signing the judgment on the appeal, alienated a portion of his property, which has been levied on and sold, and the money brought into Court for distribution. Do these judgments take, pro rata,-ox does the judgment which was unappealed from, and which, consequently, is prior in date, have the preference 1
If the words of this Statute were doubtful,' the preamble would furnish a key to its meaning. It recites that a contrariety of decisions had taken place in the different Circuits of the State, as to the time when the property of the party against whom a judgment is entered, shall be bound. Some of the Courts held, that notwithstanding an apipeal was entered, all the property of the defendant was bound from the first judgment; others, that the entry of the appeal vacated the first judgment, unless it was dismissed, when, of course, the first judgment stood affirmed. Now, in view of this controversy, the Legislature declare, that all the property of the party shall be bound, according to the provisions of the 26th section of the Act of 1799, from the signing of the *127first judgment, in cases where no appeal is entered. But if an appeal is entered, then the property of the defendant shall not be bound, except from the signing of the judgment on the appeal— except so far as to prevent its alienation.
For myself, I do not feel at liberty to say that it shall he bound beyond this.
Besides settling the contrariety of decisions which had sprung up in the Courts against the lien of the first judgment, in cases of appeal, the Legislature seem to have had but a single object in view, in passing this Act, and that was, to prevent the alienation, by the defendant, of his property, intermediate the first and second judgment. And the justice and propriety of this was suggested, no doubt, by the fact, that they had already declared, in the previous part of the section, that no lien was created on the property, provided an appeal was entered. They then enact, by way of exception, in the conclusion of the'section, that the defendant shall not alienate his property, so as to weaken or defeat the rights of the creditor, or the security on the appeal, in the event of his having the debt to pay; but that both shall be remitted back, if necessary, to the first judgment; that is, the Legislature intended to say, and have said, in so many plain English words, that for the protection of the appeal creditor, and the security on the appeal — a favorite class with all our laws — all the property which the defendant held at the time the first judgment was rendered, shall be retained and held subject to the ultimate recovery in the case ; and that if the defendant attempts to dispose of it, it may be followed in the hands of the purchaser, and made liable. Otherwise, the elder judgment, which was unappealed from, finding it more convenient to seek satisfaction out of the property in possession of the debtor, the lien would have been lost to the appeal creditor, upon that which was conveyed away, and his own safety, as well as the indemnity of the security on the appeal, jeopardized.
But, I ask, did the Legislature design to interfere with the relative liens of judgments, as fixed.by the Judiciary Act of 1799 ? To my mind, it is plain that they did not. Indeed, it would seem to me, that they had not left the matter to conjecture; for the Act itself expressly declares, that in cases where an appeal is entered from the first verdict, the property, of the party against whom the verdict is rendered, shall not be bound, except from *128the signing of the judgment on the appeal. Is it not manifest, therefore, that the Legislature did not intend to disturb the law of lien, as it previously existed, between the judgments themselves ?
But, while it is conceded that all this is true, where the defendant makes no attempt to sell his property, yet that fact, under the Statute, fixes the appeal lien from the first verdict. Such, however, is not the language of the Statute. It is true that that event creates a qualified lien, from the date of the first judgment. But for what purpose, and to what extent ? I answer, in the terms of the law itself, “ so far as to prevent the alienation by the defendant but not so far, I respectfully add, as to interfere with the lien of an older judgment.
And why should it be so ? Under this Act, by no shift or device on the part of the debtor himself, or in connection with the other judgment creditors, can he prevent the whole of his property from being made liable for the whole of his debts ; and if the proceeds would be rateably distributed among them, according to the seniority of their respective liens, why should alienation, or any other act, done or attempted by the defendant, affect the rights of his creditors 1 In other words, why should the fact that he has sold his property, place the appeal creditor in a better situation than if he had not sold it 1 Can there be any good reason assigned, for supposing that the Legislature would have been influenced by any consideration whatever, to place the relative rights of the creditors themselves upon the happening or not of such a contingency 1
In cases of attachment, vigilance is rewarded by causing the first served to be first satisfied. But so sacred did the Legislature regard prior liens, that they would not permit even the attaching creditor to assert his lien before an older judgment creditor-. But it is argued, that under the Act of 1822, a lien is given to an appeal judgment, as against not only the purchaser, but all other-judgment creditors, not on account of any thing done by the creditors, but by the act of the debtor, in alienating his property, and which, it is admitted, it otherwise would not have had; and that, too, when, perhaps, the elder judgment has followed the property, and brought it to market! In this case, I believe, (I do not speak confidently, not having the papers before me,) the *129fact is accidentally otherwise; still this does not weaken the force of the argument.
Entertaining these views of the Statute, I concur in the verdict of affirmance.