concurring.
The questions in this ease, are presented upon the following state of facts, to wit: An attachment, at the instance of John A. Erwin, was levied upon the effects of Allen A. Williams, art absconding debtor, on the seventh day of December, eighteen hundred and fifty-three; another attachment, in favor of William H. Beach, was levied upon the same effects, on the seventh day of December, eighteen hundred and fifty-three ; another attachment, at the instance of S.. S. Earrar & Bro., was. levied upon the same goods, on the seventh day of December, eighteen hundred and fifty-three; and another attachment, at the instance of Nancy C. Erix, was levied, on the ninth day of' December, eighteen hundred and fifty-three—all of which attachments, save that of Nancy C. Frix, were upon ordinary notes of hand, and returnable to March Term, 1854, of said Court. The attachment of Nancy C. Erix, was founded on a note for rent, to become due on the twenty-fifth day of December, eighteen hundred and fifty-three, and was returnable to March Term, 1854, of said Court.
And, at said term, judgment, upon ordinary suit, was had by Henry Moore, William H. Howard, Howard & Gardiner and A. D. King & Co., against said Allen A. Williams. The claim of Nancy C. Erix was also sued to judgment, at the said March Term, 1854, of said Court.
A fund was raised, by the sale of said goods under attachment, sufficient to satisfy said judgments of Henry Moore, William H. Howard, Howard & Gardiner, A. D. King & Co. and Nancy C. Erix; but not sufficient to satisfy, also, the attaching claims of said John A. Erwin, William H. Beach and S. S. Earrar & Bros. At March Term, 1854, of said Court, the attorneys of said Henry Moore, William H. Howard, Howard & Gardiner and A. D. King & Co., moved an order, requiring-the Sheriff of said county, to pay over to them the amounts due on their several and respective judgments ; to which, the attorneys of said John A. Erwin, William H. Beach and S. *369S. Earrar & Bros, objected, because tbe judgment obtained at this term of the Court, upon the attachment debt of Nancy C. Erix, was of equal dignity with said claims of Plenry Moore, Howard & Gardiner, William H. Howard and A. D. King & Co., and was entitled to payment, equally with them; and that said debt of Nancy 0. Erix being levied after . those of John A. Erwin, William E. Beach and S. S. Earrar & Bros., should not bo preferred-over them, but should be postponed—which point the Court over-ruled, and decided that said judgments were entitled to the full amount duo upon them, and granted said order.
The attorneys of Nancy C. Erix then moved an order, that the Sheriff pay over to them the amount of her judgment, obtained at tlio same term as the judgments which were ordered to be paid; which order the Court refused to grant, but decided that said judgment was not, at that time, entitled to any part of said fund, but should be postponed until the other attachments went to judgment, and might then be paid, according to the time at which each attachment was levied. To which rulings and decisions, counsel for John A. Erwin, William H. Beach and S. S. Earrar & Bros, excepted, because the judgment of Nancy C. Erix, being of equal dignity with those of Henry Moore, William H. Howard, Ploward & Gardiner and A. I). King & Co., was entitled to equal payment with them; and that the attachment of Nancy 0. Erix, being levied after those of John A. Erwin, William H. Beach, and S. S. Earrar & Bros., should not be preferred over them, but should be postponed.
And the counsel for Nancy C. Erix excepted to the ruling and decision of the Court, because her judgment being obtained at the same term of Court with those which were ordered to be paid out of the attachment fund, was entitled to-equal satisfaction.
And the counsel for John A. Erwin, William H. Beach, S. S. Earrar & Bros, and Nancy 0. Erix, says, that the Court erred in refusing to rule—
*3701st. That the judgment of Nancy C. Frix, being of equal dignity with those of Henry'Moore, Howard & Gardiner, William H. Howard and S. D. King & Co., was entitled to equal1 payment with them ;• and that said attachment being levied after those of John A. Erwin, William H. Beach and S. S. Farrar & Bros., should not be preferred over them, but should be-postponed.
2d. That the judgment of Nancy C. Frix, being obtained at the same term of Court with those which were ordered to be paid out of the attachment fund, was entitled to equal satisfaction.
I am for affirming the decision of the Circuit Court, upon all the points raised in this record. That is, first, in ordering the money in hand, to bo divided between the judgments obtained in the ordinary suits, and the attachment judgment of. Mrs. Frix—all of these judgments being of the same ' date. Secondly, in allowing the ordinary judgment creditors to retire with their money, inasmuch as they wore entitled to priority of payment, over attachment creditors, whose suits had not matured into judgment; and lastly, in directing that the fund distributed to Mrs. Frix, and which was sufficient to satisfy her demand, should be retained in Court, subject to the claim of the attaching creditors, whoso attachments wore served before that of Mrs. Frix, but whose judgments would be younger than hers, owing to the fact that her debt was for rent; and, consequently, went into judgment at the first term.
The disposition of this money was in accordance with the practice of Courts—so far as I am acquainted with it, is in conformity with the opinion of this Court, in 3 Kelly, 169, and 5 Ga. Rep. 176 ; and is admitted to be law, unless, as counsel contend, the 7th section of the Act of 1814, (Cobb, 74,) is repealed by the 2d • section of the Act of 1822, (Cobb, 497) ,- and it is to that inquiry, that I propose to'address myself.
Is the 7th section of the Act of 1814, which provides, that in all cases of attachment, the one first served, shall be first satisfied, repealed by the 2d section of the Act of 1822, which declares, that all judgments signed on verdicts rendered at the *371same term of the Court, shall be considered, held and taken to be of equal date ? In other words, was this Court mistaken in holding, as it did, in McDougald vs. Barnard, (3 Kelly, 169,) that in all collisions between attachments, it is the levy which fixes the lien and not the judgment.
This is, if I understand it, a fair statement of the proposition.
No one denies or doubts, that judgments obtained in ordinary suits, whether as between themselves, or in a contest with attachment judgments, are to be paid according to their date. But we had supposed, and do still think, that, in a conflict between attachments only, it is the levy and not the judgment, ■which fixes the lien. And that, notwithstanding the attachments may all go into judgment at the same term; or the junior attachments, from being founded on a rent note, or from any other cause, should go into judgment first, as in the present, case, that still, in obedience to the plain and imperative mandate of the Act, as understood and administered for forty years, that the attachment first served, should bo first satisfied. Such is the unmistakeablo language of the 7th section of the Act of 1814. And such, it is admitted, is the law of the State, unless that section of the Statute is repealed by the Act of 1822.
Does the 2d, section of the Act of 1822, repeal the 7th section of the Act of 1814, either by express words, or “ necessary, irresistible implication” ? It is not pretended there is any express repeal. Are the two Acts, then, so clearly and indisputably contradictory and contrary to each other, that .they cannot bo reconciled ? “ The leaning of the Courts”, says Mr. JDivarris, on Statutes, “is so strong against repealing the positive provisions of a former Statute, by construction, as almost to establish the doctrine of ‘no repeal by implication’.— (Page 531.) And the doctrine to be found in all the books is, that the law does not favor this mode of repeal, as it carries with it a reflection on the wisdom of the former Legislature. (11 Reports, 63. Dyer, 347. 15 East. 377.)
But, admitting .the maxim, leges posteriores contrarias abro*372,gant, that is, that if two inconsistent Acts be passed, the first must give way, and the last be obeyed; yet, there are certain rules which have been prescribed, to test the question of repugnancy—or, rather to ascertain whether obedience may not be yielded, both to the old law and the new, without derogating from either. I will state several of them.
A later Statute, which is general and affirmative, does not abrogate a former, which is particular. (6 Reports, 19 b.)
Sir O. Bridgman lays down this doctrine: “ that the law will not allow the exposition of a Statute, to revoke or alter, by. construction of general voords, any particular Statute, where the words may have their proper, operation without it.” Lyn vs. Wyn, (Bridgman’s Judgments, 122.) Darcy’s Case, (Cro. Eliz. 512.)
A subsequent Act, which can be reconciled to a former Act, shall not be a repeal of it, though there be negative words; as the 1 & 2 Ph. & M. c. 10, that all trials for treason, should be according to the course of the Common Law, and not oth•erioise, does not take away 35 Hen. 8 c. 2 for trial of treason, ■beyond sea. Forster’s Case, (11 Reports, 63.)
So, where there is a complete difference in the whole purview of two Statutes, apparently relating to the same subject, as Excise Licenses and Justice’s Licenses, for selling spirituous liquors, the former Act remains in force. King against M. Downs and another, (3 T. R. 567.)
Let us now collate the several Acts, or parts of Acts, which relate to this subject.
By the 26th section of the Judiciary Act of 1799, it is provided : “ that all the property of the party against whom a verdict shall be entered, shall be bound from the signing of the first judgment; but where several judgments shall be of equal date, the first execution delivered to the Sheriff, shall be first satisfied”. (Cobb, 494.)
By this Statute, it will be perceived, that the first judgment fixes the lien ; and that where there are several judgments of equal date, then the priority or preference was to be settled by the first execution delivered to the Sheriff.
*373By the Act of 1810, all judgments are made to rank by priority of date, in the distribution of money, provided the demand of such right, is made before the Sheriff, Coroner or Constable, paid the money over to the plaintiff in interest. The Act is silent, as to any advantage resulting from the first delivery of the execution. (Cobb, 495, 496.)
Independently of the General Judiciary Act of 1799, the 26th section of which I have quoted, there was a separate Attachment Law, passed the same year, as seems to have been usual with past assemblies. They never blended this summary proceeding by attachment, with actions commenced by ordinary process. They are kept distinct, in all of our legislation ; a fact important to be noted.
Prior to 1814, I am unable to ascertain what was the practice of the Courts, cither as to the conflict of lions between attachments, themselves, or attachments -and ordinary judgments. As it respects the satisfaction of attachment judgments, the only direction of the law is, that the money be paid into Court, and the surplus, if any, turned over to the defendant, or held subject to the further order of the Court.
In 1814, the Legislature passed an Act, not amondatoi’y of the Judiciary Act of 1799, but of the general Attachment Law of the 18th of February, 1799; and by the 7th section thereof, declared that “ in all cases, the attachment first served, should be first satisfied”. (Cobb, 74.) Having used the broad terms, that in all cases, instead of saying in all attachment cases, to prevent a misconstruction of their meaning, and to limit the preference thus created, to a contest between attachments only, the 8th section provides, that “no lien shall bo created by the levying of an attachment, to the exclusion of any judgment obtained by any creditor, before judgment is obtained by the attaching creditor”. (Ib.)
As to the proper exposition of those two sections of the Act of 1814, we refer to the two cases, already cited, in 3 Kelly and 5 Ga. R. If I have not misunderstood the argument, the soundness of that exposition, apart from the Act of 1822, is iiot disputed.
*374Thus, then, stood the law of liens in this State, in 1814— namely: that in a controversy between v ordinary judgments, the oldest took first. If several were of the same date, some of the Courts, I infer from the Act of 1822, held that they divided the money ratably, while other Judges were of the opinion that the Act of 1810 did not repeal that clause in tho 26th .section of tho Act of 1799, which made tho priority of lien depend upon the first delivery of the execution to the officer, where the judgments wore of equal date. There seems to have existed, also, some contrariety of opinion, as to tho force and effect of a first judgment, in appeal cases. In a conflict between ordinary and attachment judgments, the same rule prevailed, viz: the date of the judgment fixed the lien in all such .cases. But in a contest between attachments, tho first served had first to be satisfied. And in this state of tho question, tho Act of 1822 was passed.
It purports, in its title, to have a two-fold object to accomplish. First, “ to amend the 26th section of the Judiciary Act of 1799” ; and secondly, iCto prevent the fraudulent enforcement of dormant executions”. With this latter provision, wre have, at present, nothing- to do.
It will be recollected what was the 26th section of tho Judiciary Act of 1799, which is thus recited in the title, to the Act of 1822. It was, that the lien of ordinary judgments, was determined by their date; so, that several judgments, rendered on different days of the same term, took precedence of each other, according to their respective datos. And this preference was left undisturbed, by the Act of 1810. It also directed, that where several judgments were signed on the same day, of the same term, that in such case, -the first delivery of the execution issuing on said judgments, should determine the preference. By- the Act of 1810, it was left doubtful, whether the provision had been disturbed.
Now, then, for the mischief; for in cases like this, we must ever keep a steady eye on the resolutions of the Barons of the Exchequer, in Heydan’s Case, (3 Rep. 7,) if we would attain to the sure and true interpretation of Statutes, namely: the *375old law—the mischief—the remedy, and the true reason of the-remedy. Let the preamble, itself, speak upon this point. It recites, that “ a contrariety of decisions, having taken place in-the different circuits in this State, as to the time when the-property of the party, against whom a judgment is entered,shall be bound,” &c.
“Be it enacted, That from and after the passing of this Act all (?) property of the party against whom a verdict shall be entered, and a judgment signed thereon, in conformity to the provisions ofthe 26 th .section of said Act of 1799, shall be bound from'the signing of the first judgment, in cases where no apj3eal 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, shali not be bound, except from the signing of the judgment ón the appeal, except so far as to prevent 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.
“ Section II. All judgments signed on verdicts rendered at the same term of the Court, (shall,) be considered taken, and held to be of equal date; and no execution founded on said judgments, obtained at the same term, as aforesaid, shall be entitled to any preference, by reason of being first placed in the hands of the officer”. (Cobb, 496, 497.)
Did this Act intend to interfere with the relative lien of attachments, as fixed by the Act of 1814? Does it refer to attachment judgments at all ? Does it not relate exclusively to the lien of ordinary judgments, as adjusted by tho Acts of 1799 and 1810, and the contrariety of decisions made by the Courts, upon these Acts? Why amend the 26th section of the Act of 1799, in order to reach and control attachment liens, which did not come under, and wTere not regulated by it?
Indeed, the first section of this Act establishes, conclusively, upon its face, that it docs not apply to attachment judgments. It declares, that from and after its passage, that “all the property of the defendant, against whom a verdict shall be entered, and a judgment signed thereon, &c.” whereas, in cases of attach*376ment, the lien fastens only upon the property attached. It also contemplates an appeal, whereas there is no appeal in cases of attachment, except where the party appears and defends, or replevies, or puts in special bail, &o.; in which case it ceases to be an extraordinary proceeding, and becomes an ordinary suit against the person.
But I forbear to analyze any clause in the first section.
But, it is said, that tho terms used in the second section of' this Act, are exceedingly broad; and that it makes the judgment, alone, fix the lion in all cases. Does any one doubt, looking that section fully in the face, what is its true intent and moaning ? The Act of 1822, was designed to amend the 26th section of the Judiciary act of 1799. The first section is declaratory of the law in a matter, about which there had been a contrariety of judicial opinion. The second section, so far modifies the 26th section of the Judiciary Act of 1799,-as to make all judgments obtained at the same term, of equal date, and not of different dates, because rendered on different days. And it further amends said 26th section, by negativing the provision which made the first delivery of the ft. fa. the ground of preference, where the judgments were of equal date.
And here again, we find language which is inconsistent with the idea, that attachments were intended to be included. In declaring all judgments obtained at the same term, to be of equal date, it designates such judgments, as required for their enforcement, executions to issue. But executions do not issue, in cases of attachment. Often, the property levied on is sold, and the money brought into Court, before the judgment is rendered ; but where this is not done, the sale, after judgment, is made under an order of the Court, and not under execution.
In short, there is not a sentence in either of these sections, which, so far from favoring, does not negative the idea, that the Act was intended to apply to cases of attachment.
But we arc told, that conceding that this is true, that nevertheless, by adopting this construction, and making the judgment fix the lien, in all cases, that we avoid a dilemma, from which we narrowly escaped, in the case before us. That if the *377attachment first served, had gone into judgment, and the money in hand had not been enough to pay all the judgments, it never could have been distributed. That so soon as Mrs. Erix, who had the youngest attachment, drew her pro rata share of the money, on account of equality in date, with the ordinary judgments, that the attachments served before hers, would have seized and appropriated it. But that no sooner would the older attachments have taken it, than the ordinary judgments would have wrested it from them, because they had older judgments than the older attachments. And jso, the money would have travelled in a circle, till the end of time.
I once said, in anticipation of this difficulty, “ sufficient unto-the day is the evil thereof.” And we are reminded, by our young brother Church, whose debut in this case, foretokens his future professional distinction, that that day is upon us. Well, what I have to say is, that difficulties, as well as greatness, are often magnified by distance ; and both diminish, upon a nearer approach and contemplation of them. And the promise is, that as our days, so shall our strength be. And this is verified in the physical and mental, as well as in the moral world.
But to return to the point, from which we are so prone to wander—does not the principle of the decision made in this case, meet the emergency of the one supposed ? A has an ordinary judgment for $100; B, an attachment judgment for $50, of the same date; and C, an attachment judgment for $50, younger than either, but founded on an attachment, served before B’s. There is $100 to be apportioned: A takes $66.66-|, and B, $33,331. Now upon the doctrine of judgment liens, A has got all to which he is entitled. Suppose, then, C should come forward and dispossess B of his dividend, by virtue of another law of liens, namely: that regulating attachments—what pretence of right would A have, to deprive C of this fund ? He planted himself upon his judgment lien, and by that, he settled and received all that he was entitled to— why should he now “ intervene”, and claim the benefit of another law of liens, regulating attachment, and not judgment liens ?
*378But suppose the principle adopted in this case, be not sound, is there not another mode, by which the entire fund, or almost the entire fund, would ultimately be absorbed by A, the ordinary judgment creditor, and thus disentangle the supposed Chinese puzzle ? Let us resume the illustration already put. We have traced the $33.33-J-, originally appropriated to the younest attachment served, but oldest attachment judgment, through B and C, back to A again, the ordinary judgment creditor. Now the error in the solution of this legal crotchet, heretofore attempted, consists in supposing that the entire amount of $33.33'J- would continue to perform the same sisyphian labor; but not so—this sum would again be sub-divided between A and B, the former, as before, taking two-thirds, and the latter one-third. And so, in passing round, this, the same sub-division, would bo repeated until nothing but an infinitesimal portion would be left.
And foreseeing- this, the Court would order, at once, the judgment of A, to be satisfied, in whole or in part, according to the amount of money in hand; and the balance, if any, to be paid to C, in case of a deficiency to satisfy the whole.
I do not say that this would be right; on the contrary, I insist, that the position taken by the Circuit Judge, in this caso, is the true one. I submit the foregoing, merely, as a practical solution of the supposed enigma, although not expert in answering conundrums.
But grant that the Court below was in error, and that the quibble remains unexplained, docs it justify this Court in doing what the Legislature have failed to perform? Can we make a law to meet the case, or what is tantamount to it, can we invoke a rule from an Act, confessedly foreign to the subject, and apply it, arbitrarily, to this case ? It may be a good rule to make judgments the only foundation of liens, in all cases ; it would certainly avoid the perplexity which a conflict of lions, based upon different principles, sometimes creates, perhaps in one caso out of a hundred, and more. It may be expedient to take away the encouragement held out by the 7th section of the Act of 1814, to the vigilant creditor; still, all this is no *379sufficient reason for a Court to render, for not administering the law as it is.
Evils infinitely greater in number and magnitude, are likely to result to the country, from the improvident Act passed by the last Legislature, upon the subject of granting new trials, than that growing out of a cofliet of lions; yet, we have felt that the mandate of the Legislature was obligatory, and we have not hesitated to obey it. And we did right, for I hold, that the' fundamental rule, the lex. legum, for tho construction of deeds, wills and all written instruments, as well as of statutes and constitutions, is to ascertain the design and intent of the framer; and when tho meaning is indisputably found out, that shall prevail, unless controlled by some higher lawn
In applying rules for the construction of statutes, we should never, says Yattel, lose sight of their object; for that must be the truest exposition of the laur, which best harmonizes with its design, its objects, and its general structure. (B. 2, C. 17, §285.) Said Lord Mansfield, in Pray vs. Edie, (1 T. R. 313,) “ whatever doubts I may have in my own breast, with respect to tho policy or expediency of this law, I am bound to see it executed according to its meaning”. “Every statute ought to bo expounded according to its meaning”. (11 R. 63.)
If this rule be granted, I ask, did the Act of 1822 intend to repeal the Act of 1814? Was this its object? Cannot these too Acts subsist together ? Although both relate to liens, is not the whole purview of the two Acts different; the one has reference to ordinary judgments, the other to attachment liens. Is not the effect attempted to be given, and so far as I know, for the first time, to the words “ all judgments” in the beginning of the 2d section of the Act of 1822, m direct contravention of the rule laid down by Sir Orlando Bridgman, in Lyn vs. Wyn, that the law will not allow such an exposition to be given to a statute, as by the construction of general words, to revoke a particular statute, where the words may have their operation without it ?
While Lord Kenyon, in Williams vs. Pritchard, (4 T. R. 2, 4,) held that a subsequent Act of Parliament would control tho *380provisions of a prior statute, if it were intended to have that operation; yet, he held, that when it was apparent that it was not intended, that the subsequent Act should have such effect, that there, although the words were broad enough to repeal the former Act, yet, the Courts had held, that, in such case, they ought not to be so construed.
It will not be profitable, I apprehend, to extend this discussion. If I am at fault in this matter, I confess myself inops eonsilii—wanting in wisdom to discern the truth. I seldom express myself with such confidence, for I rarely feel the same •Overpowering convictions of intellectual, truth.