Page:United States Reports, Volume 1.djvu/383

372 

1788.

the circumftances of the cafe, Muʃgrove's prior judgment was entitled to fatisfaction out of the money levied of the Fi.ƒa. in preference to the fubfequent judgment on which the writ had iffued? See 3 State Laws 655. ʃect. 30.

Bradƒord and Sergeant, arguing in favor of the prior judgment, admitted, that it was no lien  againft the affignees of the bankrupt, or the general creditors under the commiffion; but contended, that, unlefs it was for the general benefits, no conftruction of the act of Affembly fhoud be made to diveft the lien which the priority of Muʃgrove's  judgment had obtained ; a lien, they infifted, clearly binding as to a purchafor, and, confequently, as to a perfon levying on real eftate, who is to be confidered, in that refpect, a purchafor. They faid, that they had not been able to find any authority more in point than 1 P.Will. 737 but urged, that the want of a direct precedent was in their favor ; for, if the attempt to deftroy a lien of this kind could have fucceed, it muft frequently have occurred in the uniform ftruggle that had been made to defeat the bankrupt laws of England.

It was further obferved, that there had be no laches on the part of Muʃgrove, for he could not iffue an execution ‘till the expiration of four days after his judgment was obtained ; that it was eftablifhed long before the ftatute of frauds, that the firft judgment fhall be firft paid, although the execution was iffued upon a fubfequent one ; that the ftatute and our act of Affembly made no other alteration in the common law, than that of fubftituting the day of docketing for the relation of the firft day of the term; and that, therefore, independent of the bankrupt law, Muʃgrove's  claim was indifputable.

But they alfo contended, that, taking the bankrupt law into view, it did not interfere between lien and lien at common law; but is merely directory in the 30. ʃect. how the debts fhall be paid where no execution has been levied. The words do not include the cafe; and a former ftatute, or rule of common law, cannot be repealed or annulled, by implication. Nor could the intention of the Legiflature embrace it; for, that was to make an equal diftribution among the creditors at large; and not to afcertain a right, as between two individuals. Whether, indeed, is a real or pretended debt for which the fecond judgment is confeffed, there are no means to prove from the want of a Court of Chancery ; and whether the commiffioners might recover the money from Muʃgrove is a queftion, that cannot affect the prefent controverfy, o give Gibbs a right to retain it, which he would not otherwife have.

Ingerʃol and Lewis, for the Plaintiff in the execution, ftated, that by the bankrupt law, executions, mortgages, and pledges, were confidered in the fame light; and that the rule of law in the diftribution of a bankrupt's eftate, placed all other defcriptions of creditors on the fame footing, regarding the quantity, and not the quality of their debts. ''Green. B.L.'' 100. 101. 136. 146. 190. 12Mod. 446. ''Com. Dig.'' 532. 2 ''Black. Com.'' 487. 1. ''Bac. Abr.'' 258. They infifted, as the property would indifputably veft in the miffioners