actions, suits, causes or matters, pending at the time this act shall take effect, may be prosecuted and defended, and carried into final judgment and execution, under the provisions of this act." So far, then, as relates to the mode of practice, the judgment and execution, the intention of the Legislature is manifest, that in all suits pending, as well as in those which might afterwards be commenced, the principles of this act should govern. "All rights acquired, duties or obligations incurred," are saved, but nothing further.

What "rights" had this plaintif acquired at the time this law took effect? Certainly not the right to recover any specific sum in damages. The amount of damages, if any, were still to be ascertained by a jury. It is equally certain that he had acquired no right to any judgment for costs. This must depend upon the statute law in force at the time judgment should be rendered. Costs are unknown to the common law. They are given only by statute, and may be changed, or entirely taken away, at the will of the Legislature. It is true, had there been an interlocutory order upon the defendant for the payment of any part of the costs, accrued at any stage of the proceedings, an "obligation" would have been “incurred" by the defendant to make such payment, and a "right" would have been "acquired" by the plaintif to enforce it. But there is no such order. The only right, then, acquired by the plaintif, is to tried, determined, and carried into judgment. sequent to June 1st, 1831, the time when the fect, it would have died with the defendant. case for nuisance, abate by the death of either party. They do not survive. As, however, this action was commenced, previous to June, 1831, and during the existence of statutes, in virtue of which, such cause of action did survive, the plaintif had acquired a right, which was secured to him by the saving clause of the 120th section of the practice act before referred to, of having this action thus commenced, tried and determined. But it must be tried, determined, and carried into judgment, according to the law in force at the time of the trial. All other laws regulating the practice of the Courts, are then repealed, and that law precludes the plaintif from the recovery of costs. Judgment must therefore be entered for the amount of damages assessed, but without costs.

JUDGE COLLET dissented.

have his case already instituted, Had the suit been commenced subact of March of that year took ef Under that statute, actions on the

JOHN RIDDLE, vs. W. P. BRYAN, AND OTHERS.

Under the judgment and execution law of 1816, a judgment voluntarily confessed on process issued during the term, and execution issued within ten days, must be postponed to a judgment entered at a subsequent day of the same in a suit pending upon regular process, though no execution was sued on the latter judgment until after ten days.

Judgment and execution law of 1822, did not divest liens of former judgments where execution was levied within one year, and levy continued.

Purchaser of land at Sheriff's sale takes the title, as held by the debtor, subject to prior existing liens.

THIS was a suit in Chancery in the county of Hamilton, where it stood upon bill and demurrer, and was adjourned here for decision.

The object of the bill was to quiet the complainant in the title and possession of a certain tract of land therein described, situate in the county of Hamilton, and which he claims to hold, by virtue of a deed from one Nicholas Longworth, bearing date the 4th of April, 1829.

The case made, was as follows: on the 19th of January, 1820, the Farmers' and Mechanics' Bank of Cincinnati, commenced suit against one Andrew C. Dunseth, in the Court of Common Pleas of Hamilton county, that Court being then in session, the term having commenced on the 6th day of the previous December. On the same day, Dunseth appeared in open Court, and confessed judgment in favor of the Bank, for six thousand dollars damages, and nine dollars and eighty-one cents costs. Upon this judgment, execution was taken out on the 10th day of February, 1820, and within ten days after the close of the December term of the Court, and on the same day was delivered to the sheriff. On the next day thereafter, the sheriff levied upon the premises now in possession of the complainant, as the property of Dunseth. This execution being returned, and the property unsold, a vendi was issued on the 10th of December, 1820, the property appraised on the 12th of January, 1821, and on the 16th day of the same month sold to Longworth for six thousand dollars, this being more than two thirds the appraised value. At the April term of the same Court of Common Pleas, 1821, this sale was confirmed by the Court, a deed ordered, and executed.

W. P. and F. M. Bryan, on the 22d of October, 1819, brought suit against A. C. Dunseth, and Buckner, before the same Court of Common Pleas, then sitting in Hamilton county. The suit was commenced by summons, which was made returnable forthwith, and was served on Dunseth, Buckner not being found. Declaration was filed on the 30th of October, and judgment recovered at the next December term. This judgment was actually rendered on the 14th of January, 1820, for one thousand and forty-nine dollars and twenty-one cents damages, and twenty dollars costs. Execution issued upon this judgment, on the 7th of July, and was levied on the same premises on the 14th of August, 1820. Under this levy, the Bryans are still attempting to effect a sale. The prayer of the bill was that the complainant might be quieted in his title and possession, and that the Bryans might be restrained from further attempts to sell the premises.

LONGWORTH and WORTHINGTON for complainant.

N. WRIGHT, STORER and Fox for defendants.

Opinion of the Court by JUDGE HITCHCOCK.

This is an application in Chancery, under the 9th section of the "act directing the mode of proceeding in Chancery," passed January 22, 1824, (22 O. L. 75,) and the first question is, whether it be a case within the jurisdiction of this Court. If the question were new, there might be some doubt. No sale made under the judgment of the Bryans can affect the rights of Riddle, if he has the legal title.The subject of liens seems to be properly of legal jurisdiction. We cannot, however, consider the question as open.-It seems to have been decided in the case of the Bank of the United States vs. Shultz, (2 O. Rep. 495,) Burnet vs. the City of Cincinnati, (3 0. Rep 86,) and in the case of Norton vs. Beaver, Curtis and others, decided at the present term. In all these cases this Court took jurisdiction, and they are in many of their features, similar to the one now before

us.

In order for a correct decision of this case, it is necessary to inquire: 1st. Which of the two judgments had originally the preferable lien?

2d. If the elder judgment had originally the preferable lien, have the Farmers' and Mechanics' Bank gained any advantage by superior diligence ?—have the Bryans lost any right by laches, or delay ?

3d. Has the subsequent legislation of the State changed, or in any manner varied the rights of the parties?

4th. Did the sale, by sheriff, to Longworth, vest in him a legal title to the premises, divested of the lien of the elder judgment?

The solution of all these questions must depend upon a proper construction of the statutes, regulating judgments and executions.

The law in force, when the judgments referred to in the bill were rendered, was the act of January 31, 1816, (14 O. L. 174.) The second section of this act provides" that the lands, tenements, and real estate of the defendant shall be bound and liable to the satisfaction of the judgment, from the first day of the term in which such judgment is obtained." The seventh section contains this proviso: "that judgments voluntarily confessed in open Court, shall only have a lien upon lands, tenements, or hereditaments, from the day on which they are actually signed or entered." The judgment of Bryans was entered on the 14th of January, 1820; but under the second section of the act, it operated as a lien from the 6th of December, 1819, that being the first day of the term in which the judgment was rendered. This judgment was recovered in the ordinary course of judicial proceeding. The judgment of the Farmers' and Mechanics' Bank, operated as a lien only from the 19th January, 1820, because it was on that day "voluntarily confessed in open Court;" and under the proviso of the seventh section, such judgments have a lien only from the day on which "they are actually signed or entered." Bryans' judgment, then, was the elder judgment, and originally had

the elder and preferable lien. This is not controverted by the counsel for complainant.

We will next inquire whether the Bank gained any preference by superior diligence, after judgment; or whether the Bryans lost any right by laches, or delay? The execution of the Bank was taken out and delivered to the sheriff on the 10th, and levied on the 11th of February, 1820. This levy was held up until the 16th of January, 1821, when the premises levied upon were sold by the sheriff to Longworth, under whom the complainant claims title. Bryans' execution was issued on the 7th of July, and levied upon the same premises on the 14th of August, 1820, and under that levy they are still striving to effect a sale. There does not seem to have been any culpable neglect on the part of either of the judgment creditors. The Bank execution was first delivered to the sheriff, and it is intimated, although not very confidently urged by the counsel for complainant, that by being thus first delivered, this execution gained a preference under the third section of the act of the 31st of January, 1816, (14 O. R. 174.) If we were to look to the section alone, without reference to other parts of the statute, we should come, undoubtedly, to this conclusion. But it is the duty of the Court, to examine the whole statute, and, if possible, give such a construction, that the whole shall take effect, and the different parts harmonize together. The third, fourth and fifth sections of the act of 1816, are intimately connected, and the substance of the three are embodied in the fourth section of the "act regulating judgments and executions," passed February 4, 1824. (22 O. L. 108.) This section is as follows: "Where two or more writs of execution, against the same debtor, shall be sued out within the term in which judgment was rendered, or within ten days thereafter, and when two or more executions against the same debtor, shall be delivered to the officer on the same day, no preference shall be given to either of such writs; but if a sufficient sum of money is not made to satisfy all executions, the amount made shall be distributed to the several creditors, in proportion to the amount of their respective demands: in all other cases, he writ of execution first delivered to the officer, shall be first satisfied," &c.— This section, as well as other parts of the judgment and execution laws, has frequently been in review before the Court, and in the case of Patterson vs. the Sheriff of Pickaway county, (2 O. R. 395,) it received a construction. It was held to have been intended "to provide for cases where there were two or more judgment creditors, having equal rights, and where there is no priority of lien, as when the judgments are recovered in the same term; for cases where the judgment does not operate as a lien, but the property is bound only from the time when seized in execution, as goods and chattels," &c. With this decision we are perfectly satisfied. To give the section a different construction, would defeat some of the most essential provisions of the statute, and destroy the consistency of the law. Take it literally, and the lien takes effect, not as expressed in the statute, "from the first day of the term in which the judgment is rendered," but from the day of delivering the execution to the sheriff; that is so far as respects priority. Such could not have been the intention of the Legislature.

In the case before the Court, the two judgments were rendered during the same

term of the Court, but the judgment creditors had not "equal rights; there was a priority of lien," and this superiority of right, this "priority of lien," is not lost to the elder judgment creditor, merely from the circumstance, that execution upon the junior judgment was first taken out, and first delivered to the sheriff. Has the subsequent legislation of the State changed, or in any manner varied the rights of the parties?

It is not pretended that the act regulating judgments and executions, passed February 24, 1820, (18 O. L. 180,) varied, or in any manner changed these rights. By the provisions of the thirtieth section of that act, the act of 31st January, 1816, is continued in force as to all judgments rendered prior to the` first day of June, 1820. But it is strenuously contended, that in consequence of the act of Feb. 1, 1822, (20 O. L. 69,) Bryans lost their priority of lien. It is said that under this law, every judgment has a lien upon the real estate of the judgment debtor, from the first day of the term, in which the judgment is entered, whether it be a judgment by confession, or obtained in the ordinary course of judicial proceeding, and that by this act, the acts of 1816, and 1820, are repealed without any saving clause. From which counsel infer that the priority of the lien is destroyed, and both judgments placed upon an equality. But is this a just inference to be drawn from the premises? Assuming it as incontrovertible, that under the law of 1816 and 1820, the Bryans had a priority of lien, a preferable right, this Court will not, by the construction of a subsequent statute, divest them of that right and that lien, unless driven to the necessity of so doing, by the express letter and spirit of the statute to be construed. It is not, however, the lien of the judgment alone, upon which the defendants rely. Upon this judgment, execution had, within the time limited by law, been taken out, and levied upon the premises, and this too, at a time when the judgment creditors had a perfect right, that the levy should be made. It certainly would be a forced construction to say, that because the Legislature have provided that after 1820, all judgments rendered in the same term, whether by confession, or otherwise, should have an equal lien, it was intended that this legislation should have a retrospective operation, and destroy all priority of liens upon judgments previously rendered. It would be but to say in general terms, that the repeal of the pre-existing judgment and execution laws, by the statute of 1822, destroyed all pre-existing judgment liens. Admitting that the Legislature have the power to do this, we will wait until it is done in express terms, before we shall say they have exercised that power.

But are the counsel for the complainant correct in saying that in the act of February, 1822, there is no saving clause as to pre-existing judgments. The 16th section of that act, (20 O. L. 75,) provides "that in all cases where real estate has heretofore been levied upon, and appraised, according to the provisions of the act regulating judgments and executions, in force at the time such judgment was rendered, and shall have been twice advertised and offered for sale, and shall remain unsold for want of bidders, it shall be the duty of the Court, from which such execution issued, on motion of the plaintif, at any time within six months, next after the taking effect of this act, to set aside such levy and appraisement,