#### *Jackson v. Heiskell.

May, 1829.

Judgments — Ca. Sa. — Subsequent Judgment by Commonwealth — Fi, Fa, — Priority.*—H. obtains judgment against J. and sues out a ca. sa. on which the debtor is taken in execution: while he is in custody, the commonwealth obtains a judgment against him, and sues out a fi. fa. under which *95liis lands are sold; and then the debtor takes the oath of insolvency, and is discharged from custody under H.’s ca. sa.

Hint), the line of H.’s ca. sa. executed, given by the statute 1 B. O. ch. 184, § 10, overreaches the lien of the commonwealth's judgment, and gives the priority to H.

In a suit brought in the superiour court of chancery of Clarksburg, in June 1825, by the appellee, Heiskell, against Thompson, Will-son, and the appellant, Jackson, the case alleged proved to the satisfaction of the chancellor and of this court, was thus :

Thompson bought of Willson, a lot in Clarksburg, for 150 dollars. The contract was merely verbal : but Thompson immediately took possession of the lot, according to the bargain, with Willson’s knowledge ; paid him the greater part of the purchase money ; and built a dwelling-house and out-houses upon it. Willson, however, never made him any conveyance.

After this, Heiskell recovered a judgment against Thompson for debt, in the circuit court of Harrison, at its fall term 1822, and sued out a ca. sa. upon which Thompson was arrested and committed to jail, December 2, 1822. He gave a prison-bounds bond, which he broke ; and afterwards, December 2, 1823, he took the oath of insolvency, and was discharged from custody. In the schedule he gave in, he mentioned three debts due to him, as the only effects he owned : no mention was made of the lot he had bought of Will-son, or of any right he had in it. Nevertheless, whatever estate, right, or interest the insolvent debtor had in that property, was vested in the sheriff, for the benefit of the creditor, by force of the statute, 1 Rev. Code, ch. 134, 34.

In the general court, June term 1823, the commonwealth recovered judgment against Thompson and others, for debt *due on account of revenue collected ; and sued out a fi. fa. under the statute concerning the recovery of debts due to the public. 2 Rev. Code, ch. 189, § 8, 9, 10, p. 51. This process being delivered to the sheriff of Harrison, he levied it on the tenement in Clarksburg, which Thompson had bought of Willson. The tenement was appraised by the valuers, at 1000 dollars. Thompson’s interest in this tenement was offered for sale by the sheriff, to satisfy the commonwealth’s execution, October 21, 1823. At that sale. Willson declared, that Thompson had never bought the lot of him ; that he had built upon it without his leave ; and that he had no right to it whatever: but all Thompson’s interest in it was purchased by Jackson (who was Willson’s son-in-law) for 180 dollars.

The sheriff, by deed dated October 30,1823, conveyed Thompson’s interest in the tenement to Jackson : and afterwards, by deed dated July 16, 1824, Willson also conveyed the tenement to him.

At the time Willson made the conveyance to Jackson, and at the time of the sheriff’s sale under the commonwealth’s execution, Jackson had actual and full notice, of the service of Heiskell’s ca. sa. on Thompson in December 1822, and that his claim remained yet unsatisfied, °

The claim asserted in Heiskell’s bill, was, that Thompson, before the service of Heiskell’s ca. sa. on him in December 1822, had a complete right to demand of Willson a specific execution of his contract for the sale of the lot to him ; that this equitable title of Thompson in the tenement, was bound by the service of Heiskell’s ca. sa. on him ; that that process, having been served before the commonwealth’s judgment was obtained, gave Heiskell priority over the commonwealth, to have satisfaction out of the subject; that Jackson’s purchase of the tenement at the sheriff’s sale tinder the commonwealth’s execution, was subject to Heiskell’s prior lien ; and that, notwithstanding Will-son’s conveyance of the legal title to Jackson in July 1824, the property was liable to Heiskell’s claim, in like manner as if it had been ^conveyed by Willson to Thompson, before he was arrested under Heiskell’s execution.

Willson, in his answer, denied that he had ever made any contract with Thompson, written or verbal, to sell him the lot.

Thompson averred, that the contract was made ; that he had paid Willson the greater part of the purchase money ; that possession of the lot was given him ; and that he put valuable improvements upon it under Will-son’s eyes. And the facts were proved.

Jackson insisted, that Heiskell acquired by the service of his ca. sa. on Thompson, no such lien on his equitable title in the lot in question, as gave him priority over the commonwealth’s fieri facias ; and that he himself having fairly acquired the legal title from Willson, in addition to the right acquired under the sheriff’s sale, was entitled to hold the subject exempt from the alleged lien of Heiskell.

Chancellor Tucker held, that Thompson had acquired a right to demand of Willson a specific execution of the contract for the sale of the lot, before the service of Heiskell’s ca. sa. ; that Heiskell’s judgment having been obtained, and his ca. sa. having been served, before the judgment rendered for the commonwealth, he acquired a lien on the tenement in Thompson’s hands, prior and preferable to the lien of the commonwealth’s judgment ; and that Jackson had purchased with actual and full notice of this lien ; therefore, he decreed, that the tenement should be sold by his marshal, and the proceeds applied to the payment, first of any balance of the purchase money that might remain due from Thompson to Willson for the lot (of which he directed an account), and then to the payment of the debt (289 dollars with interest) due to Heiskell, and the costs.

I'rom this decree Jackson appealed to this court.

The cause was argued here, by Schmidt, *96and on one point by Leigh* also, for the appellants, and by Johnson for the *appellee.

There were several questions discussed, which arose out of the peculiar 'circumstances and details of the case : but the argument turned chiefly on a question of general interest, which

Schmidt and Leigh stated to be, Whether Heiskell’s ca. sa. executed on Thompson in December 1822, gave him such a lien on Thompson’.s real estate, as anticipated. Jhe lien of the commonwealth’s judgment against him of June 1823, and, upon his availing himself of the act of insolvency in December 1823,' overreached and avoided the sale of the land under the commonwealth’s execution in October 1823? A question presenting for the consideration of this court, for the first time, the construction and effect of the provision of the statute concerning executions, introduced at the late revisal, 1 Rev. Code, ch. 134, §10, p. 528.† They held the negative.

The rule (they said) is settled and certain, in England, that, if an elegit be sued out on a judgment, and the debtor’s lands be actually extended in virtue of it, the creditor can have no other execution afterwards, and especially he cannot have a ca. sa. and if a capias be sued out, and the debtor be actually taken and charged in execution on that process, the creditor can have no other execution, and especially he cannot have an elegit. There are, indeed, exceptions to the rule in both its branches ; but those exceptions are founded on after circumstances, which defeat the effect of the process, and disappoint the creditor of that satisfaction, *which the the law supposes such process to afford : as, the rescue, escape or death of the debtor in execution ; the eviction of the tenant by elegit &c. But the creditor can never take and hold both body and lands for the same debt: either process, if it take effect, works complete satisfaction. 3 Black. Comm. 414, 419; 11 Vin. Abr. Execution, X. a. Y. a. p. 37, 42 ; 2 Wils. Bac. Abr. Execution, D. 718, 719 ; 2 Wms. Saund. 68, a., note 1. The law of Virginia is exactly the same. 1 Rev. Code, ch. 134, § 3, 4, 8, 9, the provisions of which are partly taken from english statutes in pari materia, and partly embodied from judicial decisions.

In the present case, then, Heiskell having taken, and holding, his debtor’s body in execution, never could have a right to sue out an elegit to extend his lands. And, as the only reason why a judgment constitutes a lien on the debtor’s lands, is, that the creditor has a right to sue out an elegit upon it, so that the instant the right to sue out that process is gone, the lien of the judgment on the debtor’s real estate is gone too ; therefore, certainly, Heiskell, at the date of the commonwealth’s judgment against Thompson, of the levy of her fieri facias, on his tenement in Clarksburg, or of the sale of it to Jackson, had no subsisting lien on Thompson’s real estate, by force of his prior judgment. He must rely wholly on the lien, with which the statute endues his ca. sa. from the date of its execution.

If this lien be an absolute one, to all purposes, and as against all persons, and all rights whether conferred by act of the debtor or by act of law, it is fraught with some very odd consequences. 1. It changes intirely the character of the ca. sa. which, in its own nature and direct object, does not affect lands at all, though it may ultimately compel the surrender of them. 2. It makes the service of the capias a lien on the debtor’s lands, at the same time that the service of the process destroys the creditor’s right to sue out an elegit on his judgment, and thus destroys the lien of the judgment itself on the debtor’s land. 3. It makes the capias executed a lien on the debtor’s land, to double the extent of *the lien given by the judgment which the process is sued out to enforce : it is a lien on all the debtor’s lands, whereas the judgment is a lien on the moiety only, since no more is extendible on an elegit. 4. The capias executed will put an end to all questions among creditors, concerning priority of satisfaction out of the debtor’s lands, according to priority of judgment and right. If there be two contemporary judgments, and an elegit be sued out upon one, and a capias on the other, and the body of the debtor be taken on the capias, before his land is extended on the elegit, the capias will certainly sweep all. But more ; it is to , be supposed, that the express positive lien, given to the ca. sa. by the legislature, must prevail over the lien of the judgment, which is only an implication of the judges from the right to sue out an elegit; in other words, that express legislation is paramount to judicial inference. And then, if there be two judgment creditors, and the younger sue out a capias, and this process be executed, he gets an indefeasible advantage over the elder judgment creditor, though be resort to an elegit within the year. Or if there be two judgment creditors, and both sue out writs of ca. sa. but the younger resorts to that process first, and has it executed ; nay, if the elder first sue out his capias, but the younger has his first executed *;*the younger gets priority over the elder.

The sweeping construction of this new and untried provision, which leads to consequences like these, ought not to be upheld by the court, unless it be unavoidable. Happily, it is not so. The lien with which the provision endues the capias from the date of its execution, must be viewed, in connexion with the previous provisions of the section which gives it, with the mischiefs the lien was given to prevent, and with the laws of insolvency, by means of which the debtor taken in execution, may discharge himself.

Considering the context, one would think it obvious, that the lien given to the ca. sa. executed, in the last sentence of the section, *97was given only to avoid, more effectually, those acts of the debtor while in execulion that are prohibited by *the first sentence of the section (namely, alienations of his land, made by the debtor himself to defraud or disappoint the creditor at whose suit he is in execution) not to avoid the action of the law upon his property, at the suit of other creditors.

Before this new enactment, a debtor charged in execution at the suit of several creditors, might (often very conscientiously, as he might always lawfully) devote his whole property to the satisfaction of some of those creditors, to the exclusion of the rest; and, with or without reason, he was apt to exercise this right of preference, before he availed himself of theiaws of insolvency. Very few left much to be administered by the sheriff. The first part of the new section avoided all conveyances of his lands by a debtor in execution, but such as might be made to pay or secure the creditor or creditors at whose suit he should be in execution : and if the provision had stopt there, it would have left him the right of giving preference among them, before he surrendered his effects, in order to his discharge as an insolvent. And, perhaps, the additional provision, which gives a lien to the ca. sa. from the time it is levied, might have been only designed to deprive the debtor of this right of preference among-the creditors at whose sirit he was in execution, and to prefer each, according to his diligence in having his ca. sa. served.

But the legislature, probably, looked deeper. Before this enactment, a debtor charged in execution, might and frequently did sell his lands to a favoured and indulgent creditor, who had not even brought suit, and thus give him preference to the more diligent creditor, at whose suit he was in execution ; and then resorted to the laws of insolvency for a discharge, leaving the land so sold out of his schedule. And this he might lawfully do ; Bullock v. Irvine, 4 Munf. 450. Sometimes, a debtor in execution would convey his land for a feigned debt, or for a fair debt inadequate to the value of the subject, and then resort to the laws of insolvency for relief, without (of course) inserting the land so sold *in his schedule: thus disappointing the creditor at whose suit he was in execution ; absolutely, if his conveyance was for a fair debt; if for a .feigned debt, unless the creditor could eviscerate the fraud (a work of time and difficulty) : while the debtor relied on his confederate, or his favourite, for the restoration of the property, or of the surplus value of it, at a future day, to himself or his family. Nay, as the creditor who sued out a ca. sa. and took his debt- or’s body in execution, thereby abandoned his right to an eleg-it, and consequently, the lien of his judgment on the debtor’s lands ; it was slot impossible, in fact or in law, for the debtor to make a fair and valid sale of bis lands to a purchaser for the full value ; in which case the mischief to the creditor was, that money, easily concealed and dissipated, was substituted for land, a subject fixed, tangible, and incapable of diminution or destruction. Such conveyances by the debtor were preparatory steps to a discharge under the laws for relief of insolvents. They were designed to elude the full surrender of his effects. And perjury was generally necessary to the consummation of the purpose. It was to prevent such practices, frauds and evasions of justice, that this amendment to the law of executions, made the ca. sa. a lien on the debtor’s land, from the date of its service. It requires, in effect, that, in order to entitle a debtor to a discharge under the laws of insolvency, all lands sold and conveyed by him while in execution, under whatever pretext, shall be put in his schedule, so that the creditor may have the benefit of them. It gave the creditor a lien on the debtor’s land from the date of the service of his ca. sa. to avoid alienations of the debtor while charged in execution, by his own acts, not to avoid transfers of the property made by act of law ; to prevent the debtor from contriving and doing injustice to the creditor at whose suit he is in execution, not to hinder the law from doing justice to other creditors, diligently and honestly availing themselves of regular means of coercion. The lien should be held co-extensive with the mischief it was created to remedy, and no more.

*It is certain, that ihis lien can never enure to the benefit of the creditor, until and unless the debtor resort to the laws of insolvency for a discharge. If the debtor die in execution, his lands descend immediately to his heir : the creditor’s lien under his capias executed, is gone to the grave with the debtor : not even the saving power of a court of equity can reanimate it. The creditor must resort to a new execution, as provided by the 8th section of the statute of executions ; and if he now elect to have satisfaction out of the lards of his deceased debtor, he must begin with a scire facias against the heir orterre-tenant, and can have execution only of a moiety of the lands, which belonged to the debtor at the time of the judgment and subsequent to it. 2 Wins. Saund. 6, 7, notes 1, 4. Thus the lien of the ca. sa. executed, dejjends at last upon the act of the debtor; upon his obtaining a discharge, as an insolvent debtor. Irle may defeat the lien by omitting to obtain such a discharge.

It should be considered, that whatever extent the court shall allow to this statutory lien of a ca. sa. executed as to the debtor’s lands, that same extent it must allow to the lien with which a subsequent statute endues a ca. sa. in regard to the debtor’s personal property. The act of 1820, ch. 34, § 4, provides, that every writ of ca. sa. shall bind the property of the goods of the debtors, from the time such writ shall be levied. So that, now, no one can purchase the most trivial chattel, any more than the land, of a person in execution for debt, without being bound to account for the subject and the profits to the creditor, whenever the debtor shall be discharged as an insolvent ; and no one can sell him food or raiment while he is in custody, without being bound to account for the price with interest. The debtor is laid, in a manner, under sentence of excommunication. This severity may serve the purpose of compelling him to a prompt surrender of his effects to his creditor. But it is hard to imagine amyrational purpose which the legislature could have had in view, if it really intended to provide, that the lien of a ca. sa. executed, at the suit of one creditor, *98*shall not only suspend the debtor’s dealings, but suspend too all other proc ess of execution against him ; for this will be the effect of giving this lien the extent contended for. If another creditor sue out a fieri facias, levy it on the debtor’s chattels, and make his money, he will have to account for the amount with interest, to the creditor who has previously taken the body, whenever the debtor shall be discharged as an insolvent : or, the purchaser under the fieri facias, will be bound to surrender the property, and account for the profits. So, if another creditor sue out an elegit, and extend the lands of the debtor in execution, he will be bound, whenever the debtor shall be discharged as insolvent, to restore- the land and account for the profits. For if the lien extend to the subject, it must extend to the profits likewise. This will place a debtor in execution, in a situation the reverse of an outlawry: all others will be in a state of outlawry as to him. Some debtors may choose, g.nd even contrive, to be taken under a ca. sa. and instead of fraudulent alienations of debtors in execution, we may expect collusive judgments and collusive writs of ca. sa. No prudent creditor can give his debtor a moment’s indulgence, if he be at all embarrassed with other debts. No creditor, who shall regard only his own interest, will ever resort to any other process of execution but the ca. sa. And this process will, in practice, so soon as its effect shall be understood, supersede all other kinds of execution. Whatever the legislature intended by these provisions, it never could have intended this.

Johnson, for the appellee,

agreed that the question was fairly stated by the appellant’s counsel; and he maintained the affirmative of it.

The 10th section of the statute of executions, on the construction of which the question depends, arose from a doubt which had attended the interpretation of the 8th and 9th sections, as I happen to know personally, and as, indeed, is plainly to be inferred from the language of the 10th section,

*and from the place it holds in relation to the two former. The 8th section had given new process of execution against the lands of a debtor dyingin execution ; and the 9th had provided, 'that such execution should not be levied on those lands which the debtor, after the date of the judgment against him, had sold bona fide for the payment of any creditor at whose suit he was in execution. It had been thought that, as this proviso exempted from execution, those lands only, which were sold for the satisfaction of the creditors at whose suit the debtor was in execution, all other sales and alienations, made while he was in execution, were void as to those creditors. This opinion had been adopted by the late chancellor Brown of Staunton, and had been the basis of one of his early decrees. He acted on it again, in in the case of Bullock v. Irvine ; and, in that case, extended it further, perhaps, than its reason would warrant; for though Bailey (the debtor there), while in execution at the suit of several creditors, sold his lands in satisfaction of one who had never sued him, yet the plaintiff Irvine was not one of the creditors at whose suit he was in execution, had no judgment against him at the time, and brought his suit, upon a judgment rendered afterwards, impeaching Bailey’s sale as fraudulent. This court reversed the chancellor’s decree; and though it did not, in terms, overrule his construction of the 8th and 9th sections of the statute, the principles of its decree were thought by many to be in conflict with the chancellor’s opinion. Very soon after this case was reported, the revisal furnished the occasion to settle the law on this subject ; and this 10th section declared and enacted it accordingly.

The purpose of the first clause of this section, was to avoid alienations of land made by a debtor in execution, unless made for the benefit of the creditor; that of the second, to make the execution a lien on the land, and fix the time when that lien should commence. There is no question as to the . construction of the first clause: it clearly makes void, as to the creditor at whose suit the debtor is in execution, ’’■'every sale, conveyance and transfer of lands made by the debtor while in execution, unless it be bona fide, absolute, and for the benefit of such creditor. The second clause declares, with equal clearness, that the execution “ shall bind the real estate of the defendant, from the time when it shall be levied. ” And the question upon this clause, is not as to the existence of the lien, or the time of its commencement, but as to its character : does it overreach-voluntary alienations only? or has it preference also to alienations by act of the law?

I concede, that the lien of the prior judgment does not aid the lien of the execution ; arid that he who claims under a levied ca. sa. must rely wholly on the lien with which the statute has endued it.

The language of the statute is general, not importing a restricted lien, and is appropriate to create a lien giving preference as well over judgment creditors as oyer pui'chasers. The lien of the judgment, so long known to the english law, is a mere implication from the statute of Westminster giving the elegit, and that lien gives preference to one judgment creditor over another judgment creditor, as well as over a subsequent purchaser. The express lien given by our statute to the ca. sa. executed, cannot in reason be less efficacious than the implied lien given to the judgment by the english statute. Judges and jurists, in speaking of the effect of the english statute, tell us, habitually, that the judgment binds the land of the debtor from ■its date. The law of England and the law of Virginia employ the same language -in describing the effect of judgments and executions on the property of the defendants: the judgment binds the lands, the delivery of a fi. fa. binds the personal property. Our statute adopting this language, so familiar to the profession, declares that the ca. sa. executed shall bind the real estate from the time of the levy. Bind it to what extent? The plain answer is, to the same extent to which the lands of debtors are bound by other judicial process; so bind it as to give the creditor preference over subsequent purchasers, *and subsequent liens of every kind. No good reason can be perceived for departing from the plain import of the provision, or for restraining its generality. Neither will the *99strange and mischievous consequences that have been anticipated, follow from our construction.

There is nothing strange or mischievous in the change it makes in the remedy by execution against the body. That remedy, unknown to the common law, was introduced by an ancient english statute, in a form of great severity : when the debtor’s body was taken under it, he must die in prison or pay the debt. But, in our law, this execution against the body had been long used, not to punish or oppress, but to compel an unjust debtor to surrender his property for the payment of his debts. He might at any time discharge himself from confinement, by the surrender of all his property. In the mean time, to give an opportunity of bringing that property into fair market, he might take his own time, and was indulged with the privilege of the prison rules. If he surrendered it, it was sold for the payment of his debt, and the surplus, if any, restored to him. If he died in execution, without surrendering his effects, the lien of the judgment was revived, and a new execution might go against his property, with a proviso, that his lands bona fide sold to pay the debt for which he was imprisoned, should not be liable to such execution. When it was found that debtors abused the privilege of the prison rules, by often establishing their home within them, enjoying their property during life, and unjustly delaying the creditor, this privilege was curtailed, and they were required to pay the debt within twelve months after the arrest, surrender their property, or go into close jail. The legislature having gone thus far, to enable the creditor, by means of an execution against the body, to obtain satisfaction from the property of his debtor, and having found these means habitually evaded, by fraudulent sales, by unjust and often feigned preferences, given to indulgent, favourite, or fictitious creditors, it was not strange, that it should go a step farther ; that it should forbid alienations *after the levy of a ca. sa. unless for the purpose of paying the debt, and give to the creditor, whose execution was levied, a preference, from that time, over all creditors having then no lien on the property of the debtor. It was a consistent and rational advance in that path of policy, which led to the single end of subjecting the debtor’s whole estate, within a reasonable time, to the payments of his debts.

It is not a consequence of our construction, that the ca. sa. executed will put an end to all questions of priority among judgment creditors, or that the junior judgment creditor may by the levy of a ca. sa. displace the lien of a prior judgment, or that the lands of a debtor in execution, will be locked up from the process of other creditors.

The judgment creditor, who sues out an execution against the body of his debtor, and levies it, surrenders thereby the lien of his judgment, by having elected this process of execution ; and that lien can never be revived, but by the death of the debtor in execution, or his escape, or rescue. In lieu of the lien so surrendered, he obtains the statutory lien of the execution, commencing at the date of the levy. This lien has no relation back ; it affects no prior right of creditor or purchaser ; every fair purchaser and judgment creditor, whose rights are prior in time, have preference by law. '■ Every judgment creditor, therefore, whose judgment is prior to the levy of the capias, may sue out his elegit, which will have preference to the capias. So, too, a judgment rendered after the levy of the ca. sa. will sustain an elegit levied upon the lands of the debtor in custody. The levy of such elegit will be valid, till the lien of the capias be consummated by the oath of insolvency, or till it be superseded by an elegit issued after the death of the debtor in custody. Meantime, the tenant by elegit will be entitled to the rents and profits in satisfaction of his debt ; and whenever evicted, will have the same remedies upon his judgment for the recovery of the balance, as are given to every other evicted tenant by elegit. The lien given by the statute to the capias levied, does not bind the mesne profits. It binds the land *only, and the profits can no more be sequestered, under this lien, prior to its consummation by the oath of insolvency, than they would be under the lien of a judgment before its consummation by an elegit, or under the lien of a mortgage before its forfeiture. The statutory lien of the execution, was intended to preserve the lands of the debtor in custody, so that when surrendered under the oath of insolvency, they might be delivered up for the benefit of the creditor with no other incumbrance than that which bound them on the day of the arrest.

Encountering, then, none of the anticipated mischiefs in our construction of the law, why should we depart from the plain import of its words, and hold, that the lien was given only to avoid those acts of the debtor, that are prohibited by the first sentence of the section, or to regulate the preference between several creditors, at whose suit the debtor was in execution?

If it be admitted, that the legislature meant to give one creditor a preference over another creditor, the admission surrenders the argument, that the second clause in the sentence is to be limited by the first. What reason can there be, why the legislature would prefer a creditor whose execution is levied to-day, over one whose execution is levied to-morrow, and that without reference to the dates of their respective judgments, and yet allow a subsequent creditor to obtain a judgment, while the lien of both executions is in full force, and by an elegit gain a preference over them both?

Again, nothing would be easier than to evade the restrain upon alienations imposed on the debtor, if a subsequent judgment creditor were allowed to have a preferable lien. The debtor in execution, who could not sell, might nevertheless contract debts, confess judgments, suffer his whole real estate to be extended by elegits, and then discharge himself by the oath of insolvency. There is, in truth, no safety, in the interpretation of this statute, but by following its plain letter and obvious spirit.

*It will be time enough to interpret the subsequent act of 1820, declaring the lien of the ca. sa. on the personal property of the defendant, when a case shall arise under it. It does not follow, however, *100that the two statutes must necessarily receive the same interpretation, though they should be found to employ the same words. Nothing is more usual than to construe the same words differently, when applied to different subjects; and, especially, when these subjects are real and personal property. When the statute of 1819 declares, that the capias shall bind the lands, from the time of its levy, it is manifestly proper to interpret this lien, by analogy, to other liens on real estate: and when the act of 1820, declares, that the capias shall bind the personal estate, from the time of its levy, it may be equally proper to interpret this lien, by analogy to other liens on personalty. The act which declares, that the fi. fa. shall bind the personal property, from the time of its delivery, may furnish that analogy, and, with many reasons ab inconvenienti, may justify the opinion, that the lien of the capias levied will not save the personal property of the debtor, from seizure and sale under a subsequent fi.fa.

*

Judgments — Ca. Sa. — Subsequent Fi. Fa. by Another Creditor — Priority.—In the principal case it is held, that where a judgment is obtained against a debtor and a *ca. sa.*is sued out and the debtor is taken in execution and while in custody the commonwealth obtains a judgment against him and sues *outfl.fa.*under which his lands are sold, and the debtor then takes the oath of insolvency and is discharged from custody, the lien of the judgment creditor *95under his *ca. sa.*has priority oyer the commonwealth’s ./?. *fa.*This case was cited and overruled in Foreman v. Loyd, 3 Leigh 295. To the same effect the principal case is cited in Evans v. Greenhow. 15 Gratt. 159; Charron v. Boswell, 18 Gratt. *226.*

In Rogers v. Marshall, 4 Leigh 425, where it is held that by the actual service of a *ca. sa.*the judgment lien is destroyed, it is said at page 482 in reference to the principal case, in that case, too, the judges who were inclined to give the *ca. sa.*lien the greatest extent admitted, that no creditor, after taking out a *ca. sa.*and getting it executed could stand upon the lien of the judgment.

The principal case is cited in Stuart v. Hamilton. 8 Leigh 506. in a note by the president, to the point that while the debtor remains in custody, he is not liable to be proceeded against in equity. See mono-graphic *note*on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.

*

Leigli was not retained in this cause; but the same point was involved in another case, in which he was retained. — Note in Original Edition.

†

The section is in these words : “And if is hereby declared and enacted, That every sale, conveyance and transfer of any lands or tenements, made by any person charged in execution for any debt or damages, shall be absolutely null and void, as to the creditor or creditors at whose suit he is so charged in execution; unless such sale, transfer or conveyance, be absolute and bona fide, and be made for the payment of the debt and damages due to such creditor or creditors, and the proceeds of such sale, conveyance or transfer, be paid, or be secured to be paid within a reasonable time, to such creditor or creditors : and that all executions of capias ad satisfaciendum, levied after the commencement of this act, shall bind the real estate of the defendant, from the time when they shall be levied.” — Note in Original Edition.

CARR, J.

Though several questions were raised and discussed, in the argument of this cause, there is but one which seems to me worthy of consideration by the court. That is a question wholly new, and very important. I sincerely wish, therefore, that it had been heard b.v a full court. It was said at the bar, that there is another case in court involving the same point: and, so far as I am concerned, I shall be perfectly willing, when that shall come before us, to hear the point again argued.

The question arises upon the 10th section of the statute concerning executions; *a-*provision first introduced at the revisal of 1819. As the law stood, up to that date, when a debtor charged in execution died, the party at whose suit he was so charged, might sue out new execution against his lands and goods: but such new execution could not be taken *against any lands, tenements or hereditaments, which the person dying in execution, should, at any time after the judgment or judgments on which he was so charged, have sold bona fide for the payment of any of his creditors, at whose suit he should have been in execution, and the money paid; or secured to be paid, to any such creditors ' with their privity, in discharge of his or their debts, or some part thereof. These provisions of the former law were retained at the revisal, and from the 8th and 9th sections of the revised act. And then follows the new section.

In. the case before us, Heiskell had a ca. sa. levied on Thompson : and while he was in execution upon it, the commonwealth obtained judgment against him, took out a fi. fa. and under it sold his tenement in Clarksburg to the defendant Jackson. Thompson afterwards swore out. And the’question arising under this new provision of the law, is, whether the lien of Heiskell’s ca. sa. do not overreach the sale of the commonwealth and the title of Jackson?

If we take the literal meaning of the words, it would seem to decide the question at once: for they say that the ca. sa. shall bind the estate of the debtor, from the time of the levy; and here the levy was before" the judgment of the commonwealth, and-the ca. sa. in full force, when the sale took: place. It was strongly contended, however, at the bar, that this would be giving the-law a meaning much too large, and going-far beyond the mischief intended to be-cured. That mischief was said to be this, that a debtor in jail might give preference-to some ca. sa. creditors over others; and' the object of this clause was to take away such power, and give the ca. sa. creditors, priority according to the levy of their executions. If a judge might be permitted the expression, I should say, I wish this, were the true construction: for, it seems to me, that there is a harshness in the other, not in harmony with the general humanity of. the law. It seems to hold out an invitation to creditors to take the bodies of their debtors. But such considerations can have no weight with the judge, where the words of the law are *plain, and the meaning clear: and to me it seems that they are so here. The “ca. sa. shall bind the real estate from the time it shall be levied:” bind the real estate, how? not sub modo, but without éxception. I can only understand it to mean, that from the moment the ca. sa°. is levied, there is a lien which attaches to the real estate, and which, when the state of things happens that shall give it activity, will overreach every subsequent lien, incumbrance or sale. A creditor gets his judgment and levies his ca. sa. So long as the debtor chooses to remain-in execution, the lien is dormant. When he swears out, it is awakened into life and activity, and vests in the sheriff a right to-recover for the creditors (each in his turn) all land, to which the debtor had title on the date of the levy. But it looks not beyond the levy. If A. and B. have judgments, A.’s being prior, and B. levies a ca. sa. and then A. takes an elegit, he can never be. disturbed by the lien of B.’s ca. sa. because his judgment was before it.

It was said this construction changes wholly the nature and effects of the ca. sa. And this is most true. But the legislature had the right to do this; and its words are so plain, that I am compelled to believe it meant to do it. If inconveniences are found to follow, the same hand which gave the wound, must administer the cure.

GREEN, J.

Of the various objections taken to this decree, only one requires serious examination; that which presents the question, Whether a ca. sa. executed, and the discharge of the debtor afterwards under the act for the relief of insolvent debtors, so binds the debtor’s lands, as to give the creditor a right to satisfaction out of them, against a purchaser of the same lands, before the discharge of the debtor, under a writ of fieri facias upon a judgment of the commonwealth, obtained after the service of the ca. sa.?

This depends upon the true construction of our act of 1819, declaring that all executions of ca. sa. shall bind the defendant’s real estate, from the time when they shall be ^levied; a provision extended to personal property by an act of 1820-21. These provisions seem, at first view, very odd, and almost unintelligible. *101Before they were enacted, a ca. sa. whether ■executed or not, neither bound nor in any way affected the debtor’s property, real or personal: and these new enactments provide no means, by which to render the binding force given to a ca. sa. executed, •available to the creditor. We can readily understand, how a judgment binds a moiety of the debtor’s land; because it may be taken by elegit: how a fieri facias bound the debtor’s goods, from its date at the common law, and from its delivery to the sheriff by statute; because they might be taken under it, notwithstanding an alienation after the date in the one case, and after the delivery of the writ to the sheriff in {he other: and how a writ of warrantia charta:, or a writ against an heir upon the ■obligation of his ancestor, binds all the lands of the defendant in the one case, and all the assets descended in the other, from their dates; because upon the judgments in such suits, the land itself may be taken. But there is some difficulty in comprehending how any proceeding, under which no property can be taken, without the assent of the debtor, can bind it, or in what way, or to what purpose or extent. Yet these provisions certainly meant to give some new capacity to the ca. sa. when executed; and it is our duty, to inquire into the true object of the law, and to carry it into effect by the means intended, if that can be ascertained, or otherwise, by means most convenient and conformable to the general spirit of our legislation. To this end, an attention to the state of the law, when these provisions were introduced, is necessary.

Before the statute of 21 Jac. 1, ch. 24, after a ca. sa. executed, the creditor had no further remedy upon his judgment, even if the debtor died in execution, except perhaps in the case of an escape. That statute authorized the creditor, in case the debtor died in execution, to resort to new executions against the debtor’s lands and goods, as if he had never been taken in execution, with a proviso exempting *all lands, which the debtor might have sold bona fide for the payment of any of his creditors, and the money so applied. The provisions of that statute were incorporated into our code in 1726, with slight verbal variations, not varying the effect. And so the law continued until the revisal of 1792, when it was so changed, as to exempt only such lands as the debtor might have sold bona fide for the payment of any of his creditors at whose suit he was in execution, and the money so applied with their privity.

This was the state of the law, when the provision in question, in respect to lands, was introduced at the revisal of 1819. Still, as at the common law, a creditor, at whose suit the debtor was taken or charged in execution, could have no further remedy upon his original judgment, unless the debtor died in execution, or perhaps in the case of an escape; and then, he was remitted to his remedies upon his original judgment, in no degree strengthened by the circumstance that the debtor had been in execution. But, if the debtor was discharged from custody under the acts for the relief of insolvent debtors, these statutes did not apply to the case; and while in custody he might dispose as he pleased, provided it were done bona fide, of all his property, real and personal, which the creditor could not in any way reach or subject to his demand. Bullock v. Irvine, 4 Munf. 450. Again, one of the effects of our acts for the relief of insolvent debtors, was to distribute all the effects of such a debtor, amongst all his creditors, at whose suit he was in execution, pari passu, without regard to the dates of their judgments or executions, or of the levying of them.

At the revisal of 1819, the former provisions, in respect to the case of debtor’s dying in execution, were retained unaltered; and two new provisions introduced, 1. that every conveyance, &c. of lands made by a debtor charged in execution shall be void as to the creditors at whose suit he is in execution, unless it be absolute and bona fide and made to pay or secure the debts of such creditors, and the proceeds paid or secured to be paid to them (dropping the *words, “with their privity,” found in the preceding section). 2. “And that all executions of ca. sa. shall bind the real estate of the defendant, from the time when they shall be levied.”

These provisions were certainly not intended to apply to the case of a debtor dying in execution; for that had been provided for in the sections immediately preceding, in a different way: in some respects more beneficial to the creditor, remitting him to the original lien of his judgment, and overreaching all alienations since its date, unless made for his satisfaction, whereas the section in question affected no lands alienated in any way before the levying of the capias : in some particulars less beneficial, theca, sa. binding all, the original judgment only a moiety, of the debtor’s land. Nor were they intended to apply to the case of an escape; in which case, the creditor might perhaps resort to other executions on his judgment; or if not, there are no means in that case, by which any effect can be given to the binding force of the ca. sa., and, especially, those provisions cannot appljr to the case of an escape, if there be any other case, to which they can be applied with effect, in the ordinary course prescribed by law. And that, I think, is the case of a discharge of the debtor under the acts for the relief of insolvent debtors, in which case, all his alienations, unless made for the payment of the creditors at whose suit he is in execution being avoided by the provision under consideration, the lands so alienated would vest in the sheriff for the benefit of those creditors, to be distributed among them pari passu, but for the provision declaring that each execution binds the property from the time it was levied, which establishes the priorities amongst them, according to the dates of the levies. And this, I think, was one of the purposes of that provision; whilst the other was, to deprive the debtor in execution, of the privilege which he before had of giving a preference amongst his creditors and disposing of his property ad libitum, if it was done bona fide, and their swearing out of jail, and thus wholly frustrating the cred*102itor at whose suit he was in execution.

*But then comes the question, which this case presents, Whether these provisions affect the rights of third persons, obtaining judgments against the debtor, and taking his property in execution while he is in custody? I doubt, whether this consequence was in the contemplation or design of the legislature; but it seems to be necessary, and unavoidable; for the same ■quality given to the ca. sa. executed, which, by binding the property, establishes priorities amongst the creditors at whose suit the debtor is in execution, must, from its very nature, and being given in general terms, operate throughout, and affect alike the rights of all persons indiscriminately.

I am sensible of the great harshness, and (in its practical application) inconveniences, of this new law: but those considerations belong to the legislature, and not to the courts of justice. There are, however, many palliating circumstances, and such as may prevent the consequence anticipated in the argument of his cause, that the execution of ca. sa. will be universally resorted to. In the first place, the law is totally unavailing, unless the debtor be discharged under the insolvent debtor’s acts; for, in no other case; is there any means of enforcing it. And the debtor’s lands may be extended under any judgment, rendered in favour of any other creditor, at any time before the levying of the ca. sa. and the ■extent cannot be disturbed, if the debtor be discharged as an insolvent, even though the judgment, under which he was in execution be anterior in date to that extended. So, an extent may be levied upon any judgment obtained while the debtor is in execution, and the property enjoyed as long as he remains in custody; and, unless he is discharged as an insolvent, the tenant by elegit cannot be affected, otherwise than he would have been liable to be affected if the ca. sa. had never issued, that is, by an extent on the prior judgment. An,d the whole of the personal propertj' of the debtor in custody, may be taken in execution under any judgment no matter when obtained, or sold by him; and unless he avail himself of the acts for the relief of insolvent ^debtors, dying in execution or escaping, the creditor at whose suit he was in execution, can never, bj' any means, subject the property or its proceeds so sold or taken in execution.

In strictness, Thompson’s interest in the lot in question, could not be taken in execution nor transferred to Jackson, by the sheriff’s sale under the execution, it not being such a trust as is subjected to execution by our statute. Yet the execution delivered to the sheriff, bound his right in equity, as it would have bound it at law, if his title had been legal, or such a trust as is subjected by the statute to execution. And Jackson’s purchase entitles him to be substituted to the rights of the commonwealth, to the extent of the price paid by him; and if the execution of the commonwealth had a priority over the rights of Heiskell, he might have availed himself thereof. In a court of equity, therefore, the rights of the parties, such as they are, have ■the same effect as if they had been legal. |

CABEIvIv, J.,

said he concurred in the opinion of his brethren; but the point was one which ought to be argued before a full court, and whenever it should arise again, he should be ready to re-consider it.

The decree was affirmed.