of public bounty, from parting with their claims for an inadequate consideration, as well as to relieve the officers of government from the labor and responsibility of examining and determining the fact and validity of assignments. Whatever was the intent of Congress, in introducing the proviso into the act, it is at least, doubtful, whether, by any fair rule of construction, any other or greater effect can be given it, than a direction to the officers of government, to disregard all assignments, in examining the claims and issuing patents, leaving the effect of such assignments, as between the claimant and third persons to be determined by the principles of the common law, applicable to claims capable of being made the subject matter of a contract. In such a case, when the claim was of land, and the assignment by deed, with covenants of warranty, the assignor or grantor, would be estopped by his covenant, from avering that he had, at the time of the assignment, no interest, or no assignable interest in the thing granted. The proviso was not intended, nor can it be construed to operate upon the person of the claimant, rendering him incapable, in law, of making any contract respecting his claim, and bears no just analogy to the cases to which it has been assimilated, in the argument of conveyances by an infant, non compos, or Indian, whom the law holds inops consilli, and incapable of binding themselves by deed. But so far as it can have any effect, as between the claimant and third person, it must be because it operates on the estate, the subject matter of the gift, making the donation of land depend on the condition, that the claimant does not assign his claim, before the lands should be granted. In this view, the interest which the refugee would have in the bounty land, would depend upon a condition that he should not assign, before he obtained a grant. A breach of this condition by the claimant, would be a forfeiture of his claim to the bounty land, of which the government might take advantage by refusing to issue a patent; but a coveyance by deed, by the claimant, although it might involve a forfeiture to the government, of his claim, would nevertheless be good as against him, by estoppel. Plow. 234, 430, 434. 2 Serg. and Ra. 507.)

But it is unnecessary to determine what would have been the effect of the proviso if the conveyance from J. Allen to G. W. Allen, had been made before the act of February 18, 1801, as we are of opinion that that act amounted to a granting of the lands, within the true intent and meaning of the proviso in the act of '98. It has already been observed that the restraint imposed upon assign. ments, until "lands be granted to the persons entitled," was intended to guard against the mischiefs resulting from speculating in claims of so uncertain a character: and the expressions used should, if possible, receive such a construction as will effectuate the intent of congress, without continuing the restriction, after the reasons which induced its imposition had ceased to exist. The act of 1801 removed every objection to the free alineation of this property, that could have influenced congress in imposing the restriction. The persons entitled are named, and the number of acres which each claimant should receive, as the bounty of congress, was fixed, by that act. A tract was selected from that immense body of land then owned by the United States in the Western country, and set apart to satisfy those claims. A mode was pointed out by which the ministerial officers of government were to cause locations to be made, and

patents were, without any

located.

further act of the legislature, to issue for the lots so

The terms grant and give, are frequently used by congress in the same sense, and when they could not intend a patent to issue for the lands so granted or given. By the ordinance of May 20, 1785, lot No. 16 of every township is "reserved" for the use of schools, and by the ordinance of '87 the same lot is "given" for the same purpose, and lot 29, "given" for the purpose of religion. In the act of April 20, 1802, "it is enacted that section No. 16, in every township shall be granted," for the use of schools. And these expressions frequently occur in the acts of Congress providing for the support of the gospel and schools; and in none of these cases, was it ever in the contemplation of the legislature, that patents should issue for these lots in order to vest in the state, or township, a right to use them, for the purposes for which they were given. The words of the proviso in the act of '98 "granted to such persons," are more appropriately fitted to express the general appropriation or grant of lands to satisfy the claims of refugees collectively, than the issuing of a patent to the individual claimant. If the individual grant, or patent had been intended, a more appropriate expression, "granted to such claimant," or other words peculiarly applicable to the individual refugee, and not to the whole body of the claimants, would have been used. Some other legislative act, beside the law of '98, was evidently contemplated, for a report of the claims was to be made to congress, by the board constituted to examine the testimony; and without such act, the claimants could never receive the promised bounty. The provisions of the act of '98, taken tagether, furnish grounds for fairly infering that the legislature, when they used the expression "granted to the person," had in view the setting apart and appropriating a tract of land from the great body of the lands then owned by the United States, to satisfy the claimants, after their claims had been ascertained, and fixed: an act necessary to be done thereafter by congress, to carry into effect their previous resolutions and laws.

The term granted is here used, in the same sense as given. A bounty in lands was promised to be thereafter given to the refugees. By whom was this gift to be made? By congress, the only body that possessed the power of bestowing the promised bounty upon the claimants; and it is to their future contemplated legislative act of confering this bounty that this proviso refers, and not to the ministerial act of issuing the patent. The act of 1801, having fixed the quantum of land to which each claimant was entitled, and set apart and reserved a tract, in which each claimant's land was to be located, may well be considered as a granting act of a legislature, for the land bestowed upon the refugees, within the meaning of the proviso in the act of '98; and the provision that patents shall be granted, as directory to the proper ministerial officers, to issue the customary and proper evidence of the title of each claimant, to the lands granted him by that act.

The deed from John Allen to G. W. Allen cannot be considered as a mere

covenant to convey. It has all the requisites of an absolute conveyance, and was certainly understood as such by the parties. The circumstance that it does not contain any specific description of the section, or tract of land intended to be conveyed, will not so change the force of terms, which it is admitted would otherwise convey a fee, as to make them operate only as a covenant to

convey. The deed recites the grantor's claim to the land under the act of 1801, and conveys "all the right title, and claim," which he had, or might thereafter obtain, with covenants of seizin and warranty. The description of the estate conveyed is sufficiently definite and certain, taken, as it must be, in connection, with the recitals in the deed, to which the words of description refer. No one can doubt, after looking into the deed, that it was the intention of J. Allen to convey all the interest he had acquired in the refugee lands by the act of 1801; and the words he used are sufficient to effectuate his intention, by passing to his grantee his estate.

John Allen having, at the time he executed the deed to G. W. Allen, an interest in the refugee lands, which he was not prohibited by law from selling, and having conveyed with covenants of general warranty, the subsequent issuing of a patent to him for the land now in controversy, in fee and in severalty, will enure to the benefit of his grantee, and he is estopped; and his heirs, to prevent circuity of action, are rebutted by his covenants, from denying that he had title to the particular tract described in such patent.

EARNFIT v. WINANS.

Under the execution law of 1824 the priority of lien is lost, if the execution is not proceeded upon, according to the provisions of that act, although the defendant was surety, and execution against him was delayed by order of the court under the statute authorising such order.

This case came before the court, by adjournment from Warren county, upon a certiorari to the court of Common Pleas, brought to reverse an order for appropriating money between the claims of different judgment creditors. It was argued by CORWIN, for Earnfit, and G. J. SMITH, for Winans.

Opinion of the court, by Judge BURNET.

The question to be decided in this case is, which of the parties is entitled to a sum of money, made on execution, each having a judgment and a levy on the property sold, prior to the sale. The facts in the agreed case, as far as it is necessary to notice them, are these: In August, 1820, Winans obtained a judgment against Adams as principal, and Hollingsworth as security, and in November following, issued an execution, which was levied on a lot of ground, No. 294, the property of Adams. As the statute requires the property of the principal debtor to be exhausted, before execution can be levied on the property of the security, Winans could not make a levy on the property of Hollingsworth, till the property of Adams was sold. In May, 1823, the above lot, No. 294, was sold by the sheriff, on an execution in favor of Dunlevy, against Adams, issued on a judgment rendered in November, 1819. This judgment having a preferable lien to that of Winans, the money arising from the sale, was paid to Dunlavy. Winans then set aside his levy, made as above, and issued a new execution, and on the 4th of August, 1823, caused it to be levied on lots No. 272, 274, 276 and 278, as the property of Hollingsworth, the se curity.

In June term, 1822, Earnfit obtained a judgment against Hollingsworth, and on the 15th of April, following, caused an execution to be levied on four lots, being the same on which Winans afterwards levied, as stated above. These lots have been sold by the sheriff, and the question is, which of the parties is entitled to the money.

Winans has the oldest judgment, but he did not levy on the property in question, within a year from the date of his judgment.

Earnfit has the oldest levy, and his levy was made within a year after the entry of his judgment; he will therefore be entitled to the money, on the principles settled in the case of Shuee c. Ferguson, at the present term, unless the statute restraining a levy on the property of a surety, till after the property of the principal is exhausted, can protect him.

This case is very clearly within that part of the 17th section, of the act of 1824, which postpones the lien of judgments, on which execution shall not have been levied before the expiration of a year. And as the legislature have, by express enactment, in the same section, excepted from its operation, a number of cases, in which judgment creditors may be restrained by law, from obtaining a levy immediately after the rendition of judgment, and have not included the case before us, the legal presumption is, that they did not intend to provide for it, or to save it from the operation of the section.

As the saving clause is special, and states distinctly the cases to be protected by it, the court cannot, by any rule of construction, enlarge it for the purpose of embracing other cases than those enumerated.

The order of the Court of Common Pleas, therefore, must be reversed, and the cause remanded, with instructions to appropriate the money to the judgment of Earnfit.

SHUEE, ET AL. v. FERGUSON, ET AL.

To take a case out of the operation of the 17th section of the execution law of 1824, a levy must have been made on the property in question, within a year after the rendition of the judgment; and a levy on other property, though within the year, will not save the lien, as to the property not levied on.

If there are several judgments, and the property in question has not been levied on within the year, under either of them, they stand on an equal footing, and the judgment creditor who first takes out execution, and causes a levy to be made, will have the preference.

If execution on an older judgment has not been levied on a particular piece of property, wiihin the year, and an execution on a junior judgment has been levied on that property, within the year, the junior judgment must have the preference, though a levy may have been made, on the same property, under the older judgment, before the levy was made on the junior judgment.

This case was adjourned for decision here, from Warren county. It came before the court upon a certiorari to reverse an order of the Court of Common Pleas, distributing certain monies, made upon execution against the defendants. Besides the plaintiff in the case, the Bank of Lebanon, and Bank of the United States were all interested. The Common Pleas made an order for paying the money to the Lebanon Bank. All the others sued out writs of certiorari.

T. R. Ross argued for Bank United States.

G. Smith for Hansburger and Sellers, in right of the Bank of Lebanon.

A. H. Dunlevy, for Shuee and Emlin.

Opinion of the Court by Judge Burnet.

It appears from the agreed case, that the Sheriff of Warren, holds in his hands a surplus of seven hundred and forty dollars, made on execution against Wm. Ferguson, subject to the claims of other judgment creditors. Motions were made in the Court of Common Pleas for this surplus, on behalf of the assignees of the Lebanon Miami Banking Company. On behalf of the Bank of the United States. On behalf of Thomas Shuee, and on behalf of Jeremiah Emlin, being separate judgment creditors of the said Ferguson. The Court of Common Pleas ordered the money to be paid to the assignees of the Lebanon Bank, on the supposition that they had the oldest and the best lien. Each of the applicants took a writ of certiorari, to set aside that order, on the ground that it was erroneously made.

The facts by which the priority of lien, of these judgments, is to be determined, are these.

The Bank of the United States obtaided a judgment against Ferguson and others, on the 8th January, 1822, in the Circuit Court of the United States, and on the 20th August, 1823, caused an execution to be levied on a quarter section of land of the defendant, Fergusons, by the sale of which, on an older judg ment, the surplus money in question has been made.

The Lebanon Banking Company obtained a judgment against Ferguson and others, in August, 1823, but never have caused an execution to be levied on the land in question.

Hansburger and Sellers, in May, 1823, obtained a judgment by attachment against Ferguson, as a debtor of the Lebanon Bank, and also obtained an assignment on the judgment in favor of that bank, against Ferguson, and on the 23d December, 1826, caused an execution to be levied on the land in question.

Thomas Shuee obtained a judgment against the same defendant, on the 24th December, 1825, and caused an execution to be taken out and levied on the land in question, on the 23d December, 1826.

J. Emlin obtained a judgment against the same defendant, on the 24th December, 1825, and caused an execution to be taken out and levied on the same land, on the 23d December, 1826.

The question of preference, among these creditors, depends on the 17th section of the act of 1824, regulating judgments and executions, which is in these words: "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."

In McCormick, v. Alexander, (2 Ohio Rep. 65) it was decided, that that section was not inconsistent with the constitution, and that it must be applied, as well to judgments which had been rendered before its passage, as to those which might be rendered afterwards, and that, although a levy had been made on a