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By the act of Februrary 1st, 1822, "regulating judgments and executions" which repeals the act of 1820, the same principle as to the lien which judgments shall have upon "lands, tenements and real estate," is continued as in the last named act. In the second section it is provided however, "that in all cases where the party obtaining judgment, shall neglect for one year after the first day of the term, in which such judgment shall have been rendered, to sue out execution thereon, and cause the same to be levied according to the provision of this act, such judgment shall not operate as a lien upon the debtor's estate to the prejudice of any other bona fide judgment creditor." This is the first law, of all those recited, which requires the plaintiff to sue out his execution within a specified time, and it was manifestly the intention of the legislature to extend the provisions of this law to judgments which had been theretofore as well as to those which should be thereafter rendered. For, in the 16th section it is expressly enacted, among other things, as follows: "and no judgment heretofore rendered, on which execution shall not be taken out and levied before the expiration of one year next after the taking effect of this act, shall operate as a lien on the estate of any debtor, to the prejudice of any other bona fide judgment creditor."

Under this latter law, and within six months after it took effect, Evans, on the 18th day of November, 1822, sued out his execution which was levied upon the house and lot as has been before stated. By pursuing this course he secured to himself, as the law then stood, his lien upon the lands and real estate of the defendant, at least upon that part of it upon which the execution was levied.— And had the property been sold under this execution, or had it been sold while the then existing law remained in force, there can be no doubt but his judgment must have been first satisfied. This would have been the preferable or better lien. Before the property was sold, however, the law then in force was repealed by the act of February 4th, 1824, on the same subject. The 17th section of the last act provides, "that no judgment heretofore rendered, or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of one year, next after the rendition of such judgment, shall operate as a lien on the estate of any debtor, to the prejudice of any other bona fide judgment creditor." It would seem from an examination of this clause of the statute, that it would be difficult to have made use of words conveying a more definite meaning. Had the words "heretofore rendered, or which hereaf ter may be rendered," been omitted, we should probably have come to the conclusion, that the statute was intended to apply only to subsequent judgments.

Where there is any thing doubtful in a statute, it is the duty of a court, in expounding it, to give it such construction as will comport with what is supposed to have been the intention of the enacting power. And where the intention is manifest, but that intention is in part defeated by the use of some particular word or phrase, the court will look to the intention, rather than the words. In the clause of the statute above referred to, however, there is nothing doubt. ful; nothing ambiguous; no words made use of which operate to defeat the manifest intention of the legislature. There is, in fact, nothing left for construction. We must apply it according to its literal meaning. Under this statute, the house and lot which had been levied upon by the several executions of Evans and McCormick, were sold. The execution of Evans had not "been

taken out and levied before the expiration of one year, next after the rendition of his judgment." The execution of McCormick had been "taken out and levied" within one year. The judgment of Evans, therefore, would not, under the law, operate as a lien so for as to prejudice McCormick, provided the latter was a bona fide judgment creditor. That he was such creditor is not disputed. The advantage which Evans possessed at the time of the levy of his execution, was lost by the repeal of the law then in force, and, under the present existing law, the lien of McCormick must be pronounced the better, or preferable lien. It is objected, however, that the law of 1824 can have no effect upon the judgment of Evans, inasmuch as by the recovery of the judgment, and the levy of the execution, he had a right vested in him of which he could not be deprived by legislative enactment. This objection presents an important inquiry, as it calls in question the constitutionality of the law above referred to, at least so far as relates to all judgments entered prior to the time of its taking effect. There may be, and there undoubtedly are cases, where it is proper, nay, where it is the duty of a court, to refuse to enforce a statute, on the ground that it is inconsistent with the supreme law of the land. Yet this ought not to be done, unless the statute in question is a plain and palpable violation of the constitution. It should be both against the letter and spirit of that instrument. So long as there is a doubt, the decision of the court should be in favor of the statute. Whenever courts, undertake to declare laws unconstitutional, they may, with propriety, be accused of usurpation. They lose sight of the object for which they were constituted, and interfere with the rights of the people, as represented in a different branch of the government.

In order to dispose correctly of this objection, it is only necessary to ascertain the nature of the right vested in Evans. It was not a right acquired by contract or agreement; it was not one which vested in him in consequence of the recovery of judgment alone; for, as has been before observed, it is not the necessary consequence of a judgment that it shall operate as a len upon either real or personal estate. Whether it shall so operate, and how far, depends `upon legislative enactment. Had this right vested in Evans by contract, he could not have been deprived of it, but by his own act. The legislature are restrained from passing any law which shall impair, or even change the nature of a contract.

Neither can a law regulating judgments and executions be considered as a law which enters into the nature of contracts, or which the parties have in view when they contract. Judgments are recovered as well for injuries sustained by torts, as for those which are sustained by reason of breach of contract. Judgments, too, are recovered not only for breach of contracts entered into in our own state, but for the breach of those which are made in other states and countries. When these judgments are once rendered, they operate equally as liens, without reference to the consideration for which they are rendered. The law of the place where a contract is made, or is to be executed, may be said, in a certain degree, to constitute a part of the contract. It is always to be taken into consideration in construing, but never in enforcing the contract. A contract made in Virginia, and to be executed in that state, must be construed according to the laws of Virginia; but if that contract is enforced in Ohio, it must be done according to the laws of Ohio. This right, then, was not vested in him by con

tract, neither was it vested in him by the operation of a law which could, with propriety, be said to constitute a part of the contract, if, perchance, his judgment was founded upon a contract.

Neither was this right founded in any principle of natural justice; because if it were founded in natural justice we might suppose all the laws on this subject would be similar in all countries, whereas we find them variant. Further, if natural justice had any thing to do with the case, it would seem to dictate that the debt first contracted should be first paid, whereas we well know that the pri ority of judgments does not at all depend upon the priority of the demands upon which they are founded. If any creditor suffers, it is generally the one who is most indulgent. Inasmuch, then, as this right was vested in Evans, not by any contract of his own--not by any principle of natural justice—but by the mere operation of a law, which cannot, with propriety, be said to enter into the nature of, or constitute a part of the contract, I see no reason for saying that the legislature had not power to repeal this law, thereby depriving him of his right. To determine otherwise would be to curtail very much the power of legislating. It is believed that no laws, especially in new states, are more frequently revised and amended than those relating to judgments and executions. In the short space of eight years, there have been no less than four different statutes on this subject in our own state, each succeeding one repealing the former. Whether such frequent changes are dictated by sound policy, it is not for the court to say; and we are not prepared to say that these several statutes are or were in whole or in part unconstitutional. It has long been a part of our system, that real estate should not be sold under execution, without valuation. Should the legis lature repeal this provision of the statute, no doubt an immense majority of the people would say, and with reason, that such repeal was impolitic, but few, if any, would say it was in violation of the constitution.

Another objection which has been urged, is, that by giving to the statute its literal meaning, manifest injustice will be done. To this it may be replied that so far as relates to the case before the court, Evans and McCormick have equal equity. They both appear to be bona fide judgment creditors, equally in justice entitled to a satisfaction of their debts. If but one only can be satisfied it must be him who has obtained a legal advantage. It is easy to conceive however, that great injustice may be done in consequence of this statute. A creditor previous to 1820, may have recovered a judgment against his debtor. In one year and a day after its rendition he may have taken out his writ of fieri facias and caused it to be levied upon the real estate of his debtor. Repeated attempts may have been made, under the writs of vendi and alias vendi, to dispose of the property, until at length in 1824 or '25, a sale is effected. But the creditor who for five years has been striving to avail himself of his judgment, finds the property of his debtor swept from him and paid over to another who recovered a judg. ment subsequent to the "first of June, 1824." Again, a creditor previous to the year 1820 may have long had a demand against his debtor. At length he commences his suit and recovers judgment. Having proceeded thus far, being wil. ling to indulge his debtor, and resting secure in his lien, he takes no steps to collect his judgment. At length, under the law of 1822, being fearful of losing his lien, he sues out his execution and seizes upon the lands of his debtor. These lands are not sold until after June 1st, 1824, and then the avails are taken

to satisfy a judgment not only junior in point of time, but a judgment recovered upon a debt contracted long subsequent to the rendition of the prior judgment. The indulgent creditor loses his demand while the one who is less so, is rewarded for what is termed his diligence. These considerations, however, are more properly addressed to a legislature, whose province it is to make, than to a court whose duty it is to expound law. That the statutes may, in some instances, operate unjustly, is no reason why it should not be enforced.

Upon the whole the court are of opinion, as before expressed, that the lien of McCormick is the better lien, and that judgment must be entered for the plaintiff.

FITCH v. DUNLAP.

2 HAMMOND, 78.

Where a newspaper is printed in a county it is sufficient for the sheriff to advertise in it sales upon execution. Notice need not be set up in other places.

This case was adjourned from Ross county Supreme Court. A motion was made to confirm a sale of lands made by the sheriff upon execution. The lands were situate in the county of Ross; and it was proved that the sale had been advertised for the time required by law, in a newspaper printed in the county, and of general circulation within it. But no advertisements had been set up, either on the court house door or elsewhere. It was suggested that this also was required by law, and to remove all possible doubt, as to what should be the practice, the final decision of the motion was reserved to be made in this court. By the COURT.

The provision of the statute is, that notice shall be given "for at least thirty days before the day of sale, by advertisement in some newspaper printed in the county, or, in case no newspaper be printed within such county, then in some newspaper in general circulation therein, and by putting up an advertisement upon the court house door, and in five other places in the county, two of which shall be put up in the township in which such lands and tenements lie."

It is suggested that the terms of this act require the advertisement to be set up on the court house door, and at the other places named in the law, in all cases of sales of lands upon execution. A different practice has prevailed in most, if not in all parts of the state; and the court think that the practice is a correct one. The terms of the statute are somewhat ambiguous; but where that is the case, the construction should be preferred that may work the least mischief or inconvenience. The member of the sentence preceding the disjunctive "or," contains a full and ample provision for giving notice of sales upon execution. The disjunctive is introduced to provide for cases not embraced in the first provision; and the terms, as well as the grammatical construction of the sentence, are both satisfied by referring the direction for setting up advertisements to the latter case only. Where a newspaper is printed in the county it is sufficient to advertise in that paper: but where no paper is printed in the county, then the advertisement must be set up-one on the court house door, five in other places in the county, two of them in the township where the land lies. The order for confirming the sale is accordingl made.

REED v. CARPENTER.

In replevin the plaintiff may appeal from a voluntary jugment of non suit.

This was an action of replevin, adjourned from the Supreme Court of Huron county, upon a question whether the appeal was correctly taken.

The suit was brought in the Common Pleas. The plaintiff replevied the property, and upon the return of the writ filed his declaration. The defendant pleaded non cepit, with notice of special matter in bar. At the term when, by the rules and usages of court, the cause stood for trial, the plaintiff became nonsuit, and judgment of non-suit was rendered against him. At the request of the defendant a jury was empannelled to ascertain the value of the property replevied. A verdict of the value was returned, for which judgment, with a penalty of fifty per cent., was rendered. The plaintiff gave notice of appeal, executed a bond, as required by law, and brought up the record to the Supreme Court, where the cause was docketed. The defendant moved to quash the appeal, upon the ground that the law did not permit the plaintiff to appeal from a voluntary non-suit.

Latimer, Williams, Whittlesey, Newton, in support of the motion.

Hopkins, contra.

Opinion of the court by Judge HITCHCOCK.

At an early period of the judicial history of the state of Ohio, it was determined that an appeal could not be sustained from the court of Common Please to the Supreme Court from a judgment of non suit.

The reason which operated upon the court in giving this construction to the statute, undoubtedly was, that such judgment did not conclude the rights of the parties. It was not final. The plaintiff might, at any subsequent period, recommence his action, and prosecute it to final judgment. The judgment of nonIsuit would be no bar. So uniform were the court in enforcing this rule, that the legislature thought proper to interfere, and on the 4th of February, 1813, enacted a statute providing in substance, that where the non-suit was ordered by the court of Common Pleas in consequence of a defect of testimony, or for any other cause, the plaintiff should have the right of appeal. From this statute no other inference, with respect to the intention of the legislature, than this, can be drawn, that where the non, suit was voluntary, the plaintiff should not have this right; and, from that period to the present, such has been the uniform decision of the court. Such being the case, the court would not hesitate to sustain the present motion, were the action of a different description, and did we suppose that by pursuing that course we should be carrying into effect the intention of the legislature, in securing to parties litigant the right of appeal.

The action of replevin is one of a peculiar nature; both parties are actors.In this state it is regulated by statute. By the 5th section of the act of the 22nd January, 1813, the statute in force when this suit was Commenced, it is provi

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