dissenting.
On the 7th day of December, 1853, three attachments were levied on the same effects of Allen A. Williams, an absconding debtor—one in favor of John A. Erwin, one in favor of Wm. II. Beach, and one in favor of S. S. Parrar &Bros.
On the ninth of the same month and year, another attachment, at the instance of Nancy C. Erix, was levied.
The attachments were all returnable to the March Term, in 1854, of Cass Superior Court.
At that term, judgments upon ordinary process, were rendered against the said Allen A. Williams, in favor of Henry Moore, of Wm. H. Howard, of Howard & Gardiner, and of S. D. King & Co.
At the same term, judgment was also rendered, in favor of Nancy C. Erix, on her attachment.
There had been a fund raised, by the sale of the attached effects, sufficient to satisfy all these judgments; but not sufficient to satisfy them, and also the attachments of Erwin, Beach, and S. S. Parrar and Bros., not then carried into judgments.
*381At the same March Term, 1854, the plaintiffs in the general judgments, moved for an order to require the Sheriff to pay' over to them the amounts due on their judgments.
This motion the plaintiffs in the older attachments objected to, because the judgment of Nancy C. Frix, was of equal dignity with those judgments; and yet, being upon an attachment which was levied after the levy of their attachments, should not, as they insisted, be preferred to their attachments, but should be postponed to them.
This objection the Court over-ruled, and decided that the general judgments were entitled to the full amount due upon them, and so made the order moved for.
Nancy C. Frix then moved for an order to the Sheriff, to require him to pay over to her the amount due on her judgment, as it had been obtained at the same term at which the judgments ordered to be paid, had been obtained.
The Court refused to give the order, but decided that this judgment was not, at that time, entitled to any part of the fund; but that it should be postponed until the other attachments went into judgment, and that it might then be paid according to the time at which each attachment was levied.
To these “ rulings and decisions”, the plaintiffs in the older attachments, and also the plaintiff in the younger, excepted— the former, on the ground that the judgment of Nancy C. Frix, being of equal dignity with the general judgments, was entititled to equal payment with them, and that her attachment having been levied after the levy of theirs, should be postponed, and not preferred to theirs—the latter, on the ground that her judgment having been obtained at the same term at which the general judgments, ordered to be paid, had been obtained, was equally, with them, entitled to be paid.
The plaintiffs making these exceptions, brought the exceptions before this Court, and it over-ruled them, and affirmed the decisions of the Court below. •
From this judgment of this Court, I dissent, for these reasons :—
The Judiciary Act of 1789 declares, that “all of the pro*382perty of the defendant shall be bound from the day of signing Judgment”. (Watk. Dig. 391.)
The Judiciary Act of 1792, makes the same declaration. (Ib. 481.)
The Judiciary Act of 1797, makes the same declaration, with the exception, that for the words, “from the day of signing/wciymewi”, it substitutes, “from the day of obtaining the , first verdict”.
The Judiciary Act of 1799, restores the old Words, and "makes additions of its own. It says: “ and all the property -of the party against whom such verdict shall be entered, shall be bound from the signing of the first judgment; but zvhere ■ several judgments shall be of equal date, the first execution ■ delivered to the Sheriff, shall be the first satisfied”.
In 1810, the Legislature passed “ an Act, to point out a regular and definitive rule for the priority of judgments, obtain■ed in the several Courts of this State”. It declares, that •“all judgments obtained in the Superior, Inferior or Justice’s ■ Courts of this State, shall be entitled to the right or claim of any money received by the Sheriffs, Coroners, or Constables, ■agreeable to the date of such judgment or judgments; and 'that all the property belonging to the defendant or defendants, shall be bound, and subject to the discharge of the first judgment or judgments, obtained in either of the aforesaid Courts: provided, the demand of suchjright is made, before any of the .aforesaid officers have paid the money over to the plaintiff in interest”. (Cobb, 495-’6.)
The chief, if not the only object of this Act, seems to have been, to put judgments of Justice’s Courts, upon the same footing as that of judgments of the Superior and Inferior Courts; and to let the judgments of all of those Courts, thus put upon the same footing, bind money in the hands of executive officers, agreeably to the dates of the .judgments, just as those judgments bound lands and goods of the defendant.
Until the passage of the Act of 1814, to amend the Attachment Act of 1799, these parts of the Acts referred to, contained all the law known to me, for regulating precedence *383among creditors pursuing tlieir debts at law, whether by the ordinary process against the person, or by the extraordinary process against the property. The law thus contained, extends to all judgments. ,
What is the rule of precedence, finally prescribed by these Acts ? It is this—in the language of the Act of 1799 : “all the property of the party, against whom such 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 the first satisfied”. The Act of 1810, did not repeal this rule—it made a new rule, with respect to the claim of money.
This being the rule as to precedence among creditors, the Act of 1814 was passed. That Act is entitled “ an Act to amend an Act, to regulate attachments in this State, passed'the 18 th day of February, 1799”. In its seventh section, it says, that “ in all cases, the attachment first served, shall be first satisisfied”. What is meant by the words, “all'cases”? Plainly, all cases of attachment. “ In all cases of attachment, the attachment first served, shall be first satisfied”.
That this is the meaning, is shown by another thing. The-title of this Act of 1814, and the title of the Act of which it, is amendatory, have in them nothing, except what relates to-attachments. To say, therefore, that the Legislature intended’ the body of the Act to contain anything else, is to say the Legislature intended to violate the Constitution.
Section seven, then, is confiñed to “ cases” of attachment. What is its effect upon them ? It is to exclude them all from the operation of the old rule—the rule aforesaid, of the Judiciary Act of 1799—as to precedence among creditors. Itisto make precedence, in cases of attachment, depend, not on the priority of the judgment, but on the priority of the service of the attachment.
This is section seven. Touching it, comes section eight, and says: “ no lien shall be created, by the levying of an attachment, to the exclusion of any judgment”. Exclusion from what ? Undoubtedly, from the old rule—the rule from which *384section seven, taken by itself, excludes all attachment judgments.
Let us, then, so read the section: “ no lien shall be created by the levying of an attachment, to the exclusion, from the old rule, of any judgment”. What sort of judgments ? Manifestly, such as are excluded from the old rule, by section seven, viz: attachment judgments, and no others.
Let us, then, so also read the section: “ no lien shall be created by the levying of an attachment, to the exclusion, from the old rule, of any attachment judgment, obtained by any creditor, before judgment is obtained'by the attaching creditor”. What attaching creditor ? Plainly, the creditor levying that attachment.. The section, therefore, may also be so read.
But even then, the section will ’ not be full. Other words will have to be supplied. As it stands, it is still a negative pregnant, of which the word “before” is the sign. What is the affirmative, which the negative carries within it ? The easiest way to answer this, is to supply the affirmative. When seen, it will speak for itself: “no lien shall be created by the levying of an attachment, to the exclusion, from the old mile, of any attachment judgment, obtained by any creditor, before judgment is obtained by the creditor levying that attachment; but a lien shall be created, by the levying of an attachment, to the exclusion, from the old rule, of every attachment judgment not obtained before judgment is obtained by the creditor levying that attachment”—that is to say, to the exclusion of all attachment judgments, obtained at the same time at which 'judgment is obtained by the creditor levying that attachment, or afterwards.
The result, according to this exposition is, that section eight is merely an exception to section seven. The rule in section seven includes within it, all cases of attaehmeut. The Legislature did not wish to include all. They, therefore, by section eight, excluded from the rule, certain of the cases which the rule included, viz: the cases which, although not served *385first, should get into judgment before the cases which were served first, should get into judgment.
This exposition makes the section consistent with the title of the Act, and therefore, with the Constitution. It makes the section have something to do, namely: to restrain the generality of section seven ; and it finds a remedy for what may be supposed to have been the mischief intended to be remedied by both sections. What was that mischief ? The rule of precedence, among creditors, prescribed by the Judiciary Act of 1799 was, that “all of the property of the party against whom such 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 the first satisfied"—that is to say, if judgments are of equal merit, then the fi. fa. of most merit—the fi. fa. which gets itself first delivered to the Sheriff, and thereby does all it can, to be the first to seize the defendant’s property, shall be the first satisfied. Now, this rule of precedence did not extend to attachment cases. In them, the property is seized at the start, before the time of fi. fas. has come. May not the Legislature have thought a rule good as to one class of creditors, viz: those by ordinary suit, would be good for another class, viz: those by extraordinary suit; and therefore, have considered it a mischief needing remedy, that this latter class should be without the benefit of such a rule ? What was the legal spectacle before the Legislature ? It saw, among creditors, by general judgments of equal date, those who were most active to get property seized under their fi. fas. prefered; but that among attachment creditors, having judgments of equal date, those who had first caused the property to be seized—that is, those who had first served their attachments, were not preferred, and what was more natural than for it to say— why this discrimination in the rule, when there is none in the reason of the rule ? It is a mischief. It shall be remedied. Judgment creditors, by attachment, shall have the same fare as judgment creditors, by ordinary process. Now, my exposi*386tion of section eight effects this. That exposition is, that among attachment judgments of the same date, the one founded upon the attachment first served—first seizing property, shall be first satisfied. B'ut where the attachment judgments are not of the same date—where one. i& “obtained before” another is, it shall be preferred to that other,, although that other may be founded upon an earlier served attachment, and this, in analogy to the. rule, as to ordinary judgments oí different dates.
If I am right in this, I am right in dissenting from the judgment of the Court. Nancy C. Frix’s attachment judgment was obtained before the other attachments were carried into judgment. She, therefore, according to my interpretation- of the law, had the preference over the other attachment creditors, although their attachments were served two days before hers was. The judgment of the Court said, in effect, that she had not this preference.
But, I have two special objections to that judgment. They have already been shadowed forth. They are, first, that that judgment, as I think, makes the Legislature intend, first, an unconstitutional thing; second, a useless thing.
That judgment, according to my understanding of what the Court said, when delivering it, assumes that the words “ any judgment”, in the said eighth section, mean any judgment by ordinary process, and do not- mean any judgment by attachment.
Now, if those yords do mean this, they mean something different from anything contained in the title of the Act. The title is, “ An Act to amend an Act, entitled £ an Act to regulate attachments in this State’, passed the 18th day of February, 1799”. (Lamar’s Com. 69.) There is nothing in this about judgments by ordinary process. To say, therefore, that the Legislature, by the words “ any judgment”, in section eight, intended judgments of this kind, is to say it intended what was unconstitutional. To say the Legislature intended that kind, and not attachment judgments too, is to say this in a still greatei' degree.
*387Indeed, there is no other part of the bodies of either this Act, or of the Act which it amends, which, as it seems to me, can, by any kind of construction, be made to refer to Ordinary judgments. Why should this part be an exception to all the rest ?
And this brings me to my second objection, which is, that if the words “any judgment” mean only any judgment by ordinary process, they mean a useless thing. They have a meaning, indeed, which renders the whole of section eight useless. Why ? Ordinary judgments were not affected at all by section seven. The words of that section are, “in all cases the attachment (not the ordinary process) first served, shall be first satisfied”. This then, does not affect ordinary judgments—does not exclude them from the rule of precedence made for them, And if this does not, no other part of the Act does. Eor aught that there is in this Act, then, ordinary judgments stand just as they stood before it existed. This being so, let us read the eighth section with that meaning supplied, which the judgment of the Court assumes to be its true meaning: “ No lien shall be created by the levying of an attachment, to the exclusion of any general judgment, (that is to say, to the exclusion of any judgment which there is no rule that excludes,) obtained by any creditor, before judgment is obtained by the attaching creditor”.
Now, to say the Legislature meant this, is to say it meant a useless thing.
I would ask, is not one thing perfectly clear, viz : that the the judgment of this Court must have been what it was, if there had been in the Act no section eight, but only a section seven. The judgment, in effect was, that the ordinary judgment creditors should be preferred to the older attachment creditors. This they were entitled to, by the Act of 1799, their judgments being older. Rut that, as to the attachment judgment creditor, the judgment was, that she should not be preferred to the older attachment creditors, though she had judgment and they had not. Their attachments were first served, and section seven says : in all cases, the attachment first served, shall *388be first satisfied. The judgment of the Court, therefore, must have been what it was, had section eight been struck out of the Act.
But my objections to the judgment of this Court, depend more upon another thing. I think that both sections, seven and eight, of the Act of 1814, have been repealed. I consider them to have been repealed by the Dormant Judgment Act, as it is called, of 1822. These are my reasons for this opinion.
The words of the Judiciary Act of 1789, were: “But all the property of the defendant shall, nevertheless, be bound from the day of signing judgment”. Those of the Act of 1792, were the same. Those of the Act of 1797, were also the same, except that for the words “from the day of signing judgment”, were substituted the words “ from the day of obtaining the first verdict”. Then, the words of the Act of 1799 were: “ All the property of the party against whom such 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 the first satisfied”. The Act of 1810 made no change in this rule of the Act of 1799, material to any point involved in the present discussion.
' Then came the Act of 1814. Its words are: “ in all cases, 'the attachment first served, shall be the first satisfied”. “ No lien shall be created by the levying an attachment, to the exclusion of any judgment obtained by any creditor, before judgment is obtained by the attaching creditor”. Now, these words, be their meaning what it may, to the extent of that meaning, are repugnant to the words of the Act of 1799, which words extend to all sorts of judgments, and therefore, to that extent, they repealed the words of that Act. It follows, that if the Act of 1799, as to the words of it aforesaid, should afterwards have been revived, the revived Act would be as repugnant to the two sections of the Act of 1814, as they had been to it, and it would, therefore, have repealed those two sections.
Now, the Act of 1799 was never, it is true, in this respect, *389expressly revived. But "that was done which, was equivalent to reviving it. It was done by the Dormant Judgment Act of 1822.
The title of that Act is: “ An Act to amend the 26 th section of the Judiciary Act of 1799” &c. the very section which contains the words of that Act which I have quoted. The first section declares, “That all property of the party against whom a verdict shall be entered” (the very words of the Act of 1799,) “and a judgment signed thereon, in conformity to the provisions of the twenty-sixth section of the Judiciary Act of 1799, shall be bound from the signing of the first judgment”, &e.—again the very words of the Act of 1799. Thus far, then, the rule of 1799 is re-enacted by the Act of 1822, and that rule now made • a new law, is just as repugnant to the seventh and eighth sections of the Act of 1814, as they were repugnat to it when it was the old law. But this time, being the later law, it repeals them, as they had repealed it, when they were the later. If repugnancy repeals in one case, it does in the other ; for it is the same two things opposed both times. The only difference is, they change places as to posteriority.
The Act of 1822 went further—it not only repealed, as I think, those two sections, but it repealed what I conceive to !kave been- the reason of those sections, viz: a desire, on the part of the Legislature, to make precedence in attachments, ■analogous to precedence in ordinary suits—to make it depend, in both cases, when other things are equal, upon, the first seizure of property. In the second section, the Act says: “All judgments signed, on verdicts rendered at the same term of the ‘Court, be considered held and taken to be of equal date, and '■no execution founded on said judgments, obtained at the same term, as aforesaid, shall be entitled to any joreference, by reason of being first placed in the hands of the officer”.
There are other reasons which go to show that those sections ;of the Act of 1814, were repealed by this Act of 1822.
Three days after the passage of this Act of 1822, the Legislature passed “ an Act toauthorize parties, plaintiffs, to issue *390summons of garnishment in certain cases, as in cases of attachment”, in which it was declared, that “ when any money shall be paid into Court, or shall be raised by the Sheriff, or ■his deputy, or by a Constable, under this .Act, the same shall be paid over to judgments or executions against the defendant, as in other cases, according to the priority established by law”.
Now, the priority established in other cases of money in the hands of the Sheriff, Coroner or Constable, was a priority “agreeable to the date of” judgment. (Act of 1810, Cobb, 496.)
A garnishment is but a sort of attachment, and unless the Act of 1822 repealed the seventh and eighth sections of the Act of 1814, we have to say, that the Legislature intended there : should be one rule of precedence, for one sort of attachments, Viz : the rule of priority of service, and another rule for an■.other sort, viz: the rule of priority of judgment.
If the Legislature did not intend to repeal these sections, they intended to leave the law in a condition which makes it a thing, in some cases, of which this is one, impossible to bo administered.
Eor, say that the sections remain unrepealed, and that they •mean what this Court held them to mean, viz: that among attachments, the first served shall be the first satisfied, and that as to ordinary-judgments, the old law.shall continue, and those Judgments have precedence according to priority, whether as between themselves, or as between themselves and attachment judgments, then, how is the law to be administered in this case ?
To answer this question, in the simplest way, let us suppose that the motions, with respect to the money in this case, had not been made at the term of the Superior Court, at'which they were made, but at another and subsequent term—a term at which the attachments first served, had also got into judgment. This will, obviously, not vary the legal character of the case. Suppose the motions to have been thus postponed—in that event, the state of things would have been this: A fund, with three sets of claimants upon it, all having their claims in judg*391ment—the first set, say, having the youngest judgments, but judgments founded on the oldest attachments—the second set-having an older judgment, but one founded on a younger attachment—the third set having older judgments than the first,, and as old as the second, but judgments founded on ordinary-process. The fund is not sufficient to pay all.
These are the facts to which the law is to be applied—how can'it be done ? The first set of claimants state their claim to the Court, and say our attachment was first served; therefore, we must be satisfied before the second set of claimants—the Court says yes. The third set say, ah, but our judgment is older than that judgment of the first set, and judgments have preference, according to age—the Court says yes. The second set then say, true, and our judgment is as old as that judgment of the second set; and therefore, whatever it gets, we are halves in—yes, says the Court. But, break in the first set, our attachments are older than the attachment of the second set, and that gives us the right to take from it, whatever it gets from set No. 8—yes, says the Court. But, says set No. 8, whatever set No. 1 takes from set No. 2, we are entitled to take from'it, for our judgment is older than the judgment of set No. 3—yes, says the Court. But, says set No. 2, we must have an equal division with set No. 3, for our judgment is as old as their judgment is. And so, the fund would go round and round, world without end—the Court all the time sitting mechanically by, merely to serve as the motive power.
Did the Legislature intend such results as this should ever happen ? But did it intend that they should be of perpetual recurrence?
In addition to all this, I may say, in conclusion, that the general spirit and policy of our law, from 1789 downwards, has been to make precedence among creditors, depend upon the priority of their judgments. A rule which depends upon this, is easily understood—easily administered—a rule that presents fewest temptations to fraudulent practices—a rule that best enables all concerned, to find out the condition of a debtor’s prop*392orfcy—a rule of at least as much fairness, as any other—above all, a rule with which the business mind is familiar.
For these reasons, I dissent from the judgment of the Court, and think that thatjudgmentshould have been one giving the fund' to the attachment judgment, and the general judgments, in proportion to their respective amounts, and postponing the attachments not in judgment, though oldest in date, to all of the' judgments.