Erwin v. Moore , 15 Ga. 361 ( 1854 )

The Court not being unanimous, delivered their opinions seriatim.

By the Court.

Starnes, J.

The 26th section of our Judiciary Act of 1799 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, except where several judgments shall be of equal date, when the first execution delivered to the Sheriff, shall be first satisfied”.

Under the effect of this provision, the lien of judgments, in all cases, as well as thoso in which attachments had issued, as others, took date from the signing of the judgment, or from the delivery to the Sheriff, of the fi. fa. when the judgments were of equal date. In 1810, another Statute was passed, providing that all the property belonging to a defendant, “ shall be bound and subject to the discharge of the first judgment or judgments”, provided that the demand was made before the money was paid over to the Sheriff, &e. This Statute seems to have increased the doubt, and added to the contrariety of views on the subject, instead of creating “a regular and definite rule for the priority of judgments”, as its somewhat ambitious title promised. I suppose, that some Courts considered that the provision in the Act of 1799, as to the effect upon judgments of equal date of the delivery to the Sheriff, of the fi. fa. was repealed by this ■Statute, whilst others thought otherwise.

In 1814, a Statute, amendatory of an Act of 1799, regulating attachments, was passed, which provided that in cases of attachment, “ in all cases, the attachment first served, shall be first satisfied”. This Act modified the Statute of 1799, first mentioned, or of 1810, so far as to give date to the lien of judgments on attachment, as between attachments, and quoad the particular subject-matter of levy, from the time of such levy. Thi§ was, as it were, in the nature of a particular Statute, because relating only to a particular form of proceeding against “debtors, and to a particular class of levies and judgments.

In 1822, our Legislature passed an Act, whose title is “ an Act to amend the 26th section of the Judiciary Act, passed 16th ■day of December, 1799; and also to prevent a fraudulent enforcement of dormant judgments”. The preamble of this Stat- ■ ute refers to the contrariety of decisions which had been made in the different circuits of the State, as to the time when the property of a party, against whom judgment is entered, shall be bound. It also alludes to the evil resulting from judgments being.collusively kept open. The 1st section declares, that a lien shall take effect on the defendant’s property, from the signing of the first judgment, “ in conformity with the said 26th section of the Judiciary Act of 1799,” in all cases of appeal. The 2d section enacts, that “ 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, obtained at the same term, shall be entitled to any preference, by reason of being first placed in the hands of the officer”. The remaining section makes provision against collusion, in keeping ■open dormant judgments.

This, of course, is a Statute, general in its nature.

It is insisted, that the terms of this Statute are so repugnant ■to those of the above Act of 1814, that though it contains no ■express provision of repeal, yet it must be held to repeal that Act of 1814, by implication.

The words, “ all judgments signed on verdicts, rendered at the same term of the Court”, &e. as contained in the 2d section, are certainly sufficiently general to embrace judgments on ■attachments. But that they do not, I think is very plainly ■shown, by the following considerations :

[1.] The intention of the Legislature, is the cardinal guide to construction. “ The real intention, when collected with certainty, will always, in Statutes, prevail over the literal sense of terms”. (Dwarr. on Stat. 690, 11 Rep. 73.) Or, as some of our American Courts have phrased it, “ in construing a Statute, wherever the intention of the Legislature can be discovered, it should be followed with reason and discretion, though such construction should seem contrary to the letter of the Statute. (Jackson, ex dem. Scofield vs. Collins, 3 Cow. 89. Wilkinson vs. Leland, 2 Pet. 662. Riddick vs. Grovernor, 1 Mis. 147. Beall vs. Harwood, 2 Har. & J. 167.)

Now tbe little summary which I have made of our legislation, on the subject under consideration, shows very plainly, as I think, that in the Act of 1822, the law makers did not intend to repeal the Act of 1814; and that they used the words, “all judgments”, in the former Act, in the sense of general judgments, other than judgments on attachment. The title manifests that it was designed to relate to the 26th section of the Act of 1799, and to dormant judgments; the preamble refers to the same subject-matter: the several sections are to the same purport, and not the most distant allusion is made, any where in the Act, to the Statute of 1814, or to any law regulating attachments. To my mind, it seems very unreasonable, that the Legislature should have intended, by this Act, to repeal the important provisions of the Statute of 1814, and yet, have made no specific reference to the same.

[2.] The law “does not favor a repeal by implication”. And “ although two Acts of Parliament are seemingly repugnant, yet, if there be no clause of non obstante in the latter, they shall, if possible, have such construction, that the latter may not be a repeal of the former, by implication”. (Dyer, 347. 15 East. 377. Dwar. on Stat. 674.) It has been held, too, that “ a subsequent Act, which can be reconciled with a former Act, shall not be a repeal of it, though there be negative words”. (Dwar. 674.) Eor example—it was decided that the 1 and 2, Phil. & M, c. 10, to the effect, that all trials for treason, shall be according to the course of the Common Law, does not take away 35 Hen. 8 c, 2, for trial of treason beyond sea. (Forster’s Case, 11 R. 63.) And “the Statute 23 Eliz. c, 1, which gave 20 l. per month, against a recusant, did not take away the penalty of 12 pence, for every Sunday given by Statute 1 Eliz. c. 2.” (11 R. 63.)

So, in this country, it has been held, that “ a later Statute on a given subject, not repealing an earlier one, in terms, is not to be taken as a repeal, by implication, unless it is plainly repugnant to the former; or unless it fully embraces the whole subject-matter”. Dugan vs. Gittings, (3 Gill. 138.) The State vs. Woodside, (9 Ire. 496.) “ A repeal, by implication, is not favored; on the contrary, Courts are bound to uphold the prior law, if the two Acts may well subsist together”. Bowen vs. Lease, (5 Hill, (N. Y.) 226.) Bruce vs. Schuyler, (4 Gill. 221.) “ Where the provisions of two Statutes are so far inconsistent with each other, that both cannot be enforced, the latter must prevail; but if, by any fair course of reasoning, the two can be reconciled, both shall stand”. Ludlow vs. Johnston, (3 Ham. 553.)

Taking these principles into consideration, and looking upon the Act of 1822, as relating to all judgments, except where the question of a priority of lien upon a particular fund, arises as between attachments; and the Act of 1814, as intended simply to regulate this question of lien between attachments, I have no difficulty in giving what is called “ concurrent efficacy” to these Acts.

[3.] There is another rule of construction which is sorne'times.recognized, and is somewhat appropriate to this subject, though not necessary to the view I take: “alater Statute, which is general,- does not abrogate a former, which is particular”. (Dwar. 674.) Thus: the Statute, 5 Eliz. c. 4, declaring that no person should use a trade without having been apprenticed, upon pain of 40 shillings per month, did not repeal 4 & 5 Phil. & M. c. 5, to the effect, that no weaver should use such a trade, without apprenticeship, upon pain of forfeiting his cloth. (6 Rep. 19, b.) So, it has been held, that a general law, fixing the rate of interest, does not rej>eal the special law, fixing the rate to be paid by a particular bank. McFarland vs. The State Bank, (4 Pike, 410.) To the same effect, McRae vs. Wessell, (6 Ired. 153.)

[4.] Thus it is, that, in my opinion, the Acts of 1822 and 1814, may stand together, that the general rule prescribed by the first, may be enforced, and the particular or exceptional rule, provided by the second, remain unimpaired, that all the mischiefs contemplated in the passage of the Act of 1822, may be remedied, and all the benefits sought by the Statute of 1814, secured. Whereas, if we hold that the Act of 1822 repeals the Act of 1814, the remedies which we recognise as haying been contemplated in the passage of the Act of 1822, are in no -wise advanced; whilst all advantage arising out of the other Act, to the vigilant attaching creditor, over him who sleeps upon his rights, or is colluding with the absconding debtor, is entirely lost.

[5.] Applying these principles to the case at bar, I hold, that the Act of 1822 gives to these judgments a lien upon the fund to be distributed—the attachment judgment of Mrs. Erix, equally with the general judgments. There being enough of the fund to pay off all the judgments, the general judgment creditors receive their shar&, and take their leave of the matter, and of Court. But the attachment judgment creditor takes his proportion of the fund, subject to the particular or exceptional rule, relating to attachments, which is found in the' Act of 1814; and as the law which gives rise to this rule, creates a lien upon the fund in his hands, he receives that fund,, subject to that lien ; and the Court may compel him to leave the same within the control of its officers, until the relative-rights of -himself, and those other attaching creditors, are determined. There is no difficulty or complicity in such a rule.. Its practical operation is easy and advantageous.

No real difficulty would present itself, -even if the fund were-not sufficient to pay off the general judgments. In that case,, they would share the fund rateably with the attachment judgment ; and as to that fund, would then be dismissed the Court. Their lien upon so much of the fund as had been distributed to-.the attachment judgment, would have been, by it, divested.— The right of the attaching judgment creditor to the fund, as. between himself and those standing by the Act of 1814, in repari with him, would then be determined by that Act; and thus, again, the two Statutes would consist and operate together.

Let the judgment be affirmed.