Page:United States Reports, Volume 1.djvu/384

Rh 

1788.

if not prevented by the execution, that, therefore, the queftion lay property between Gibbs and the Affignees, and not between him and Muʃgrove, who could not, with any fhew of right retain the money againft the general creditors, even if the Court were, at this time, to order it to be paid to him. They faid, that the very points now made, were urged and over-ruled in the cafe cited for Muʃgrove ; 1 P.Wm. 737 and it is declared in feveral cafes, that a judgment did not bind lands any more than the teʃle of a Fi.ƒA. did goods, before the ftatute. Ibid. 92 Veʃ 239. 436.

But the very exiftence of a prior lien in favor of Muʃgrove was controverted; becaufe the act of Affembly (1 State Laws 462.3.) in refpect to the docketing of judgments, only alters the law in the cafe of bona ƒide purchafors for a valuable confideration ; and does not affect the cafe of two judgment creditors, whofe liens ftill relate to the firft day of the term. On this ground, therefore, the judgment confeffed to Gibbs in the Common Pleas, is prior to that obtained by Muʃgrove in the Supreme Court ; for the term in the Common Pleas commenced on the 7th oƒSeptember;  but the term in the Supreme Court did not commenced until the 24th  day of the fame  month; fo that, independent of the bankrupt law, the legal relation to the firft day of the term eftablifhes the right of Gibbs on the prefent controverfy.

But the bankrupt law is in itfelf clearly decifive; and that an adverfe precedent is not to be found, muft prove the univerfal fenfe of the Courts of Juftice in England to be in favor of the Plaintiff's doctrine. As, therefore, the general rule, with regard to an execution executed, includes his cafe, and excludes the cafe of Muʃgrove, it is incumbent upon the latter to fhew, if he can, any exception on which he may reft his prefent claim. The principle, indeed, as well as the practice of the law, is on the fame fide. If, alter the execution executed, the commiffioners had taken the houfe and fold it, they would, undoubtedly, have been liable to Gibbs in an action for money had an received his ufe:  but will it be affered that Muʃgrove  could maintain fuch an action, having no execution executed? Nor can it be juftly faid, that the commiffioners are not interefted in the queftion now agitated ; for, if the proceeds of the eftate fold under the Fi.ƒa. ae enough to pay both, both, according to the oppofite doctrine, muft be paid, and only the balance go to the commiffioners. But there is no cafe which can make a difference whether the money is, or is not, fufficient to pay the amount of the execution ; and fhould Muʃgrove prevail againft Gibbs, for fimilar reafons he muft prevail againft the commiffioners–to the manifeft violation of the words and fpirit of the law.

SHIPPEN,Preʃident.– The motion in this cafe is made in behalf of one Muʃgrove, who is faid to be a prior judgment: creditor, in order to have the money which has been levied and brought into Court under the Plaintiff's execution, paid to him inftead of the Plaintiff. This