
    JANUARY TERM, 1844.
    The President, Directors and Company of the Planters Bank of the State of Mississippi v. Sarah Calvit.
    On the affirmance, by the High Court of Errors and Appeals, of a judgment of an inferior court, the lien of that judgment in the inferior court is not extinguished or affected thereby. Contra, by Clayton J. dissenting.
    The judgment rendered by the High Court of Errors and Appeals, when a judgment below is affirmed, upon the appeal bond against the principal and his sureties, does not extinguish or destroy the lien of the original judgment. Contra, by Clayton J. dissenting.
    Where a judgment is by statute made a lien upon the property of the defendant therein, the mere fact that by operation of law a new judgment is predicated upon the first judgment, will not necessarily destroy the lien of the first judgment.
    A lien may exist, though it cannot be enforced.
    A judgment of affirmance in the High Court of Errors and Appeals, neither satisfies, merges, nor extinguishes the judgment below. Contra, by Clayton J. dissenting.
    On appeal from the Superior Court of Chancery, from the decision of the Hon. Robert H. Buckner, Chancellor.
    The bill in this case stated in substance as follows.
    That Sarah Calvit, in the year 1834, in the Court of Chancery, obtained a decree against William F. Markham, Christopher Dart, and Peter C. Goosey, for about the sum of $ 10,000 ; the defendants appealed to the High Court of Errors and Appeals, and gave bond, with Thomas M. Green as security in the appeal bond.
    That on or about the 5th day of June, 1835, Peter C. Goosey was indebted to the Planters Bank for and on account of money advanced to himself, and others for whom he was security.
    That the bank agreed to give time upon the said debt to Goosey, upon security being given for the same ; and thereupon Goosey executed eight notes for $8750 each, payable in one, two, three, and four years after date, one half payable at the Branch Bank at Port Gibson, and the other half at their Bank at Natchez, to C. Dart; and by him, Wm. F. Smith & Co., and Hoopes & Bogart, indorsed.
    
      And to secure the payment of said notes as they became due, and to secure Hoopes & Bogart, as indorsers, against any danger of loss, Goosey executed to Passmore Hoopes, a member of the firm of Hoopes & Bogart, a deed to the tract of land, called the Golden Plains, of three thousand acres, and to seventy-five negroes, to have and to hold to Passmore Hoopes, his executors and administrators, in trust; that said Hoopes might sell and convey, &c.
    That upon the execution and delivery of said deed to said Pass-more Hoopes, the said notes, indorsed by Hoopes & Bogart, were delivered to the bank, and by said indorsement the bank became entitled to the notes, and to the security afforded by the deed.
    The deed to Hoopes is dated June 5th, 1835, recites the notes as dated June 1st, 1835.
    The bill further states ; — That said notes, each and every part of them being unpaid, at the request of the bank, Passmore Hoopes, under and by virtue of said deed, on the 3d of August, 1840, offered the land and a large portion of the negroes for sale ; and the bank purchased the same for $21,110, and Hoopes delivered a deed for the same to the bank.
    After the sale and purchase, the bank, by their agent, placed said Peter C..Goosey in possession of said land and negroes, and other property on the plantation, all of which belonged to the bank, and constituted said Goosey their agent to manage and superintend the estate, and ship the proceeds to the bank or their order, and hoped Goosey would have remained undisturbed in his possession for the bank, and permitted to cultivate said land and plantation with the negroes for the benefit of the bank.
    . Peter C. Goosey was appointed agent, by Robert Hughes, attorney in fact, signing the corporate name of the bank, on 22d August, 1840; the deed was dated 14th of August, 1840. The bank, the bill then stated, was informed and believed that the defendant, Mrs. Calvit, had obtained a decree to sell said property, prior in date to said deed, but states an appeal was taken from the decision of the Chancellor, and said decree affirmed 15th March, 1839.
    It avers, that Mrs. Calvit’s original decree in the Chancery Court was merged in the decree of affirmance upon the appeal bond ; that Mrs. Calvit had levied her execution, upon her decree so affirmed, upon said property in Goosey’s possession. That the proceedings under Mrs. Calvit’s execution were illegal.
    Because, they are informed and believe, said Sarah Calvit, or some one for her, caused execution to issue to the sheriff of Warren county, on the 12th of November, 1839, on said decree, which was levied on the property both real and personal of William F. Markham, one of the defendants in the decree, to an amount greatly exceeding the amount due on said execution. Upon said levy no sale was made ; the execution was returned, and a venditioni expo-nas, on 2d December, 1839, was issued to said sheriff, who returned the same stayed by injunction ; and that said Sarah Calvit, since the return last aforesaid, has caused, as complainants are informed and believe, another venditioni exponas to be issued on said decree ; and instead of directing the property levied on to be sold, the said Sarah, or some one acting for her, received from said Markham one half the amount due on said execution ; and then permitted Markham to have control of so much of said execution.
    And complainants have been informed and believe, that said Markham furnished the money, and the whole of the property in said venditioni exponas described was purchased-in by a brother of said William F. Markham, at a great sacrifice, and greatly below the cash value thereof; when, had the law been pursued, the execution would have been satisfied, as complainants believe.
    That said Sarah is endeavoring to proceed against property of complainants, and they will be irreparably injured, the negroes levied on being indispensable to the crop.
    The bill is sworn to by Robert Hughes, agent for plaintiffs. He makes oath, that the statements and charges in the foregoing bill, are made by him upon the information of persons upon whom he verily believes he can rely, and that he believes the same to be true ; and that he is the authorized agent and attorney of the bank.
    An injunction was granted by a circuit Judge, staying the sale of the property levied on under the decree in favor of Mrs. Calvit, which was elder than the deed under which the bank claimed. The Chancellor dissolved the injunction, on motion, for want of equity on the face of the bill; and the plaintiffs appealed.
    
      
      W. P. Miles, for appellant.
    It is not often that important cases, involving new principles, and large amounts of property, break suddenly upon the Courts. So great a variety of cases are continually rising in practice, that by degrees nearly every possible principle is approximated, and absolutely controlled by the force of decisions made in analogous cases.
    A question now, however, entirely new, is presented to the Court for its consideration ; and one too of momentous importance, which, if not properly settled, will disturb and unfix the titles to a large amount of property throughout the State.
    It rests with appellants to prove that the lien of a judgment rendered in an inferior Court appealed from, and affirmed by the High Court of Errors and Appeals, is merged in, or extinguished by the new judgment rendered on the appeal bond. Although willing to admit this position is not altogether free from doubt, I yet incline to the belief, that, critically examined, and tested by the several mies of logical induction, it will be found to harmonize with elementary principles, and to fall within the reasoning'of numerous adjudged cases.
    The best criterion by which to judge of the truth or fallacy of a novel question, is to subject it to a close and scrutinizing analogy with principles that are well ascertained and permanently fixed. Let us test this question by this criterion, and begin by an examination of the statute authorizing forthcoming or delivery of bonds to be taken in certain cases. H. & H. Dig. 635. s. 73.
    
    This act simply declares, that if property levied on is not delivered, &c. and the bond is returned forfeited, it shall have the force and effect of a judgment; upon which the clerk is required to issue execution against all the parlies to the bond. The act nowhere declares, either expressly or by implication, that the judgment on the forfeited forthcoming bond shall operate as a satisfaction, or extin-guishment of the original judgment. And yet this Court, as well as the Supreme Court of several of the sister States, have repeatedly decided that it does. 2 Wash. Ya. Rep. 183; 3 Munford’s Rep. 417 ; 1 Marshall’s Rep. 20; 2 ib. 561 ; 3 Haywood’s Rep. 144 ; Walker’s Rep. 175, 251, 267 ; 1 How. Rep. 64, 98 ; 3 ib. 26 ; 5 ib. 200.
    
      On what principles have these numerous decisions been made ? Can any other be assigned than the following ? 1st, That the judgment-creditor cannot have two judgments at the same time, for the same cause of action, against his debtor; and 2d, That the new judgment on the bond, gives the creditor a higher security for his debt, and thereby merges the lesser security of the original judgment.
    Now let us turn to the provisions of the act regulating appeals, which expressly authorizes the High Court of Errors and Appeals to render judgment on the appeal bond in cases of affirmance. H. & H. Dig. 535, s. 20. This act provides, that in cases where the judgment of the Court below shall be affirmed, the High Court shall render judgment against all the parties to the appeal bond, which judgment shall be certified to the Court below ; and thereupon the clerk shall issue execution upon the judgment of the High Court 'of Errors and Appeals. There is a remarkable coincidence in the terms of the provisions of the two acts. In both cases, new judgments are rendered on bonds against new parties ; and in both instances, executions run out on the new judgments against all the parties to the bonds. Will not a legitimate construction of the two acts give to their force and operation the same result ? And if a judgment on a forfeited forthcoming bond, is on sound principles declared to be an extinguishment of the original judgment, on what principle is it to be declared that a judgment rendered by the High Court of Errors and Appeals, based upon a statute almost identical in its provisions, and entirely so in principle, will operate differently ? By an application of all the rules of construction to the act last cited, the same train of reasoning which convinces the mind that a forfeited forthcoming bond is a satisfaction of the judgment to secure which it was taken, will lead irresistibly to the conclusion that the judgment of the High Court of Errors and Appeals, on an appeal bond, is also a satisfaction of the judgment affirmed, to secure which the appeal bond was given.
    But there is a more potent reason why the lien of the first judgment should be merged in the judgment of the High Court of-Errors and Appeals affirming it. The judgment of the Court below is superseded by giving the appeal bond. In cases of affirmance, the judgment rendered on this bond gives the appellee a new and higher security for his debt. By the affirmance and judgment, the penalty becomes fixed, and can alone be discharged by a compliance with the condition. The supersedeas still remains propped against the original judgment, so as to preclude any execution from issuing on it; and the successful party in this Court can enfore his remedy in no other way or manner than by an execution emenating on its own judgment rendered on the appeal bond. H. & H. Dig. 535. s. 20.
    
    Again. It is impossible for the lien to relate back to the original judgment, for this reason. A judgment is an unit. Its lien, ex necessitate, partakes of the same character. But by making the lien relate back to the original judgment, both the judgment and its lien are riven asunder. Take, for instance, this case. The execution run out on the judgment of this Court rendered in 1839, against Goosey, Markham, Dart, and Green. The original decree "against Goosey, Markham, and Dart, was rendered in 1834. There can be no lien therefore, so far as Green is concerned, until the judgment of this Court in 1839. Now would it not he passing strange, that a purchaser of property at sheriff’s sale, under an execution against all these parties, should claim title to part of the property so purchased, from 1834, and as to the other part, from 1839 ? And yet these titles would be conferred by the same sheriff, selling under the same execution, against the same parties, and emanating upon the same judgment.
    I put this proposition. Is it competent for a person to buy property under one judgment, and derive title under another ? And that too when the judgment, under which he pretends to claim title, was at the time of his purchase, tied up, confined, absolutely deadened by a living supersedeas ? And yet this is the doctrine sought to be established the inevitable result consequent upon establishing the lien on, and making it relate back to the original judgment, instead of fixing it to the new judgment of this Court on the appeal bond.
    I will illustrate. Suppose the lien to relate back to the original judgment, a sale to have been made by the sheriff, an action of ejectment pending, to which the sheriff’s vendee‘is a party, and the absurdity of the position contended for by counsel for appellee will at once manifest itself. To make out his title, the sheriff’s vendee is compelled to show in evidence the record and judgment, and the execution under which the land was sold. 1 Mon. Rep. 94 ; 3 ib. 272. If the lien be confined to the judgment of this Court, then his case would be plain : because the record, judgment, and execution, would all correspond. But make the lien relate back to the original judgment, and a scene of the most admired confusion will ensue. He' first offers in evidence the record of the original judgment. He then offers in evidence the execution emenating on the judgment of affirmance of this Court, under which the land was sold. Upon the plainest principles, the execution would be inadmissible. It would neither correspond with the original judgment in amount, in date, or in the names of the parties. For the same reason, the sheriff’s deed would be inadmissible, and the result would be a total discomfiture of the sheriff’s vendee.
    It is a principle sanctified by ages, acknowledged and asserted by all the elementary writers, that the law gives no right without affording a corresponding remedy. Suppose the lien to bear date from the original judgment, and then apply the principle to this case. The existence of the lien confers upon the appellee the right to have it enforced. Does the law afford her any remedy to enforce this right ? It does not. On the contrary, she is expressly inhibited from taking any steps to enforce a right under the original judgment. .The only thing authorized by law to be done, is to issue an execution on the judgment of this Court rendered on the appeal bond. It is that which gives the right; and under it alone is the remedy enforced. The Court is referred to the cases of Purdy v. Boyle, 1 Paige’s Rep. 558, 561 ; Conway v. Jett, 3 Yerger’s Rep. 484 ; and to McJfute, etal. v. Wilcox & Fearne, 3 How.' Rep. 417, 418, 419, for decisions illustrative of the positions assumed.
    By the statute of Tennessee, whenever an injunction is dissolved, the clerk is ordered to issue an execution against all the parties to the injunction bond. The Court have there decided that this operates a discharge of the lien of the first judgment. 3 Yerger, 484. This Court'has heretofore adopted the reasoning of the Tennessee Court, in the case from 3 Yerger ; and so far as an expression of opinion goes, have directly decided the point at issue. Smith, et al. 
      v. Everly, et al. 4 How. Rep. 185. The reasoning of Judge Trotter, applied to the case at bar, taken in connexion with the statute (H. & H.‘Dig. 535, sec. 20), settles this case conclusively. For although not stritcly a precedent, because the point did not present itself for adjudication, yet the opinion of the Court, as expressed by Judge Trotter, may be safely regarded as the strongest persuasive evidence of what the law is.
    The attention of the Court is earnestly solicited to this position, that if the lien does relate back to the original judgment, it can only do so to the extent of the judgment and interest; and that the immense amount of damages subsequently adjudged by this Court, does not bind the property of appellant. The original decree was rendered in 1834, for about $8,000. That decree was affirmed, and judgment rendered by this Court, on the appeal bond, in 1839, for about $15,000. Appellants derive title from Goosey, by conveyance in 1835. Upwards of $8,000 have been paid, which fully discharges the original judgment, less the interest. And if the property levied on is liable at all, it is only so to the extent of the interest that has accrued on the original decree.
    It is respectfully insisted, that this Court will not establish a doctrine so disorganizing in its consequences as that asked for by counsel for appellee. It is demanded that this Court shall adjudge its decrees to be liens on the defendant’s property, four years in advance of their rendition. ’ For the very modest request is now made of the Court, to hold appellant’s property liable for about $5,000, costs and damages, which they had no hand in producinga judgment for which was not passed until 1839 ; their title reaching back to 1835. If the judgments of this Court can operate as liens four years in advance of their rendition, what is to prevent their having a similar operation for the space of one hundred years ? Sanction the principle contended for by counsel for appellee, and make the lien relate back four years, and there will be no safety in trade, no certainty in property, no validity in titles.
    Hitherto I have argued this case as though the decree rendered in 1834 possessed the same force as a judgment rendered in a Court of law. I will now abandon that position, and show, I think, conclusively, that a decree in the chancery court is not embraced by the statute of 1824.
    
      It will be borne in mind, that the law, making judgments a-lien on the property of defendants, is to be found in a proviso of an act having relation alone to office confessions of judgment. This Court, I know, have extended that lien to judgments generally. Burney v. Boyett, 1 How. Rep. 39. Without stopping to question correctness of that decision, I may be permitted to say the construction already given carries the provisions of the act beyond its letter, and certainly embraces its spirit as fully as the most liberal constructionist can desire. H. & H. Dig. 621. sec 43.
    In the absence of this Act it would not be contended that a judgment at law gave any lien on personal property. This point conceded, how do decrees in the chancery court stand affected ? They certainly are not embraced by either the letter or spirit of the act of 1824, and are left as they and judgments at law stood before its passage.
    In that position, then, let us view them. Our statute of 1822, which is a copy of that of Charles the 2d on the same subject, it is well known, only made the defendant’s property liable to the influence of a lien from the day on which the sheriff received the execution. In this case, no process ever issued until after the original decree was affirmed in 1839. No lien consequently ever attached on the defendant’s property until that time ; long before which (in 1835) appellant purchased the property which is now the subject of controversy.
    
      G. Winchester, for appellee.
    1st. Goosey’s deed to Hoopes of the 5th of June, 1835, passed no estate, or if any, only a life estate ; and the estate conveyed by Hoopes to the Planters Bank under the deed of trust, was void for want of authority in Hoopes to convey a fee simple title to the Planters Bank.
    The trust deed could not operate to transfer the estate, as a bargain and sale, for there is no consideration expressed in the deed. “ Being desirous,” is the language. The desire of Goosey to secure Hoopes & Bogart, as indorsers upon the eight notes, which were (after the execution and delivery of the deed) delivered, indorsed by Hoopes & Bogart, Jo the Planters Bank, was no consideration to make the deed operate as a bargain and sale. Neither was the desire to secure them for any future indorse-ments or advances, a consideration of bargain and sale. Even if Hoopes & Bogart had, at the time the deed was executed and delivered, become liable, by their indorsement of the eight notes to the bank, the desire to secure them for such liability would not be a consideration. But here, according to the statements of the bill of complaint, the eight notes were not transferred by indorsement to the bank; Hoopes &. Bogart were not even liable upon their indorsements, until after the deed was executed and delivered. A desire to secure one for future and anticipated liabilities upon future indorsements or advances, is not a consideration passing from the bargainee to the bargainor at the time of executing and delivering a deed, which can make the deed operate as a bargain and sale to pass an estate and give livery in seisin. Neither can the deed of trust operate as a Common Law conveyance of feofment and livery of seisin. It is not alleged in the bill, that possession of the land and slaves described in the deed of trust was ever delivered by Goosey to Hoopes. See 4 Kent’s Comm. 3d ed. p. 493, 495, “ No instrument can operate as a feofment without livery, &c.”
    The habendum of the deed is to Hoopes, his executors or administrators, which, if any estate thereby passed, it was only an estate for life ; nor is there anything by which the Coart can legally infer that more than a life estate was intended as a security to Hoopes & Bogart. The conveyance of a greater estate than a life estate by Hoopes to the Planters Bank, was not pursuant to his authority, and is therefore void. Even therefore, if the lien of the original decree of Mrs. Calvit is lost, the lien of the decree in the appellate court binds the property, ¡which is older than the deed, to the Planters Bank.
    2d. That Goosey by his deed of trust of the 5th of June, 1835, fraudulently intended to defeat the debt of Mrs. Calvit under her decree, conclusively appears from the face of the deed itself,'and the facts stated in the bill.
    It does not appear, by any certain statement, that Goosey was indebted one dollar to Hoopes & Bogart, or even to the Planters Bank, until the loan of $70,000 was obtained from the Planters Bank, on the indorsement of Hoopes & Bogart, which was after the deed of trust was delivered to Hoopes, and after the notes were transferred by the indorsement of Hoopes & Bogart to the Planters Bank ; and all of which was after the decree.
    The bill states that Goosey was indebted to the bank on or about the 5th of June ; that the bank agreed to give time, upon security being given ; that thereupon Goosey executed eight notes, indorsed by C. Dart, W. F. Smith & Co., and Hoopes & Bogart; that to secure said notes, and to secure Hoopes & Bogart as indorsers, and to secure them for any other future indorsements or advances, the deed of trust was executed, bearing date the 5th of June; and afterwards Hoopes & Bogart indorsed the notes to the bank, by which indorsement the bank became equitably entitled to the benefit of the deed of trust. This statement may be substantially true, and ,yet there may have been no indebtedness of Goosey to the Planters Bank until the loan of the ‡70,000 was obtained on the eight notes, on or about the 5th of June ; but which loan was not until after the deed was executed to secure Bogart & Hoopes as indorsers, and after their transfer of the notes to the bank by indorsement, by which the bank claim to be equitably entitled to the benefit of the deed of trust. There clearly is no statement of any indebtedness of Goosey to Hoopes & Bogart prior to their indorsement of the notes and the execution of the deed of trust to secure them.
    Nor is there any statement, even by construction, that Goosey was indebted to the Planters Bank prior to the date of Mrs. Calvit’s decree against Goosey, which was before the 5th of June, on or about which day Goosey is stated to be indebted to the bank.
    From the statements in the bill, it does appear that Mrs. Calvit’s decree was obtained prior to the date of the deed, and that the indebtedness of Goosey to the bank was about or on the date of the deed.
    Goosey, then, with this decree a lien upon his property, — giving Mrs. Calvit a legal vested right to have her debt satisfied out of his property in preference to any purchaser or judgment-creditor subsequent to the date of the decree, — contracts a new debt of $>70,000 with the bank, obtains 1, 2, 3 and 4 years’ time to pay the debt, and gives his eight notes, with Bogart & Hoopes indorsers ; and then conveys away all his property to Hoopes, to secure Hoopes & Bogart for their indorsement; and not only that, but also to secure them for any future advances or indorsements they might come under for Goosey.
    If a debtor can thus lock up his property from a judgment-creditor, by creating debts upon future loans and advances made after the decree, and yet in such conveyance of his property not be chargeable with a fraudulent intent to hinder, delay, and defraud his judgment-creditor, it would be difficult to bring any case within the meaning and intent of our statute of frauds.
    Both Hoopes & Bogart, and the Planters Bank, had notice of the lien of the decree, and by contracting with him the indebtedness, or (even if they bad been only general but not judgment-creditors before the decree) by taking a conveyance of all his property, were “ assisting one man to cheat ” one woman. In the case from Missouri, 12 Wheaton, Chief Justice Marshall says, “the judgment is notice to the purchaser of the prior lien ;” and Lord Mansfield, in Cowper, p. 434, states a case, “ where there had been a decree in chancery, and a sequestration.” He says, “a person with a knowledge of the decree, bought the house and goods belonging to the defendant, and gave a full price for them. The Court said, the purchase, being with a manifest view to defeat the creditor, was fraudulent, and therefore, notwithstanding a valuable considera-tidn, void.”
    “ If buying the house and goods, with a knowledge of the decree,” made it “ a purchase with the manifest view to defeat the creditor, and therefore, notwithstanding a valuable consideration, void,” then taking, a deed of trust from Goosey on the 5th of June, with a knowledge of Mrs. Calvit’s decree, which the statute made a lien of record, was taking a conveyance of the land and negroes, “ with the manifest view to defeat the creditor, and therefore,” even if to secure an indebtedness existing prior to the decree from Goosey to the Bank, “void.”
    If the conveyance from Goosey to Hoopes, on the 5th of June, 1835, was fraudulent and void as against Mrs. Calvit, then the complainants have come into a court of chancery with impure hands. The very title they have stated for themselves, they show to have been fraudulently obtained against her, and void; and therefore, whatever may be the merits of the questions they have raised upon their other statements, this statement puts them out of Court, as it shows they have no right or title to contest her claims.
    3d. A question is for the first time raised and discussed, on the application for a re-argument in this Court, which counsel for the bank rightly thought, upon the statements contained in the bill,,too hopeless to urge before the Chancellor, or on the former argument in this Court.
    It is based upon the statement, that an execution was levied on real and personal property of Markham sufficient to pay the decree ; and that “ said Sarah Calvit, as complainants are informed and believe, caused a second venditioni to be issued, and instead of directing the property levied on to be sold, the said Sarah, or some one acting for her, received from said Markham one half the amount due on said execution, and then permitted Markham to have control of so much of said execution ; and complainants have been informed and believe, that said Markham furnished the money, and the whole of the property in said venditioni exponas described was purchased in by a brother of said William F. Markham, at a great sacrifice, and greatly below the cash value thereof; when, had the law been pursued, the execution would have been satisfied, as complainants believe.” The bill is sworn to by, not the complainants, but by Hughes, as agent and attorney of complainants, upon information of persons upon whom Hughes relies. That is, Hughes is informed '-and believes, that the complainants are informed and believe, “ that Sarah Calvit, or some one acting for her, received half the amount due on her execution, and permitted Markham to have control of the execution for one half the debtand “ that complainants are informed and believe Markham furnished the money, and his brother purchased the whole property at a great sacrifice, and greatly below the cash value, when, had the law been pursued, the execution would have been satisfied, as complainants believe.”
    Is' there such a statement of facts here, and so verified by affidavit, as will afford a ground for sustaining an injunction upon the face of the bill ?
    
      u Some one acting for Mrs, Calvit,” without any authority from her, for none is stated or pretended, received half the debt due on the execution, and then permitted Markham to have control of the execution for one half the debt. So Hughes is informed and believes that the bank has been informed and believes.
    Suppose “ some one acting for Mrs. Calvit,” without any authority to do so, had received half the money, and permitted Markham to control the execution, and Markham had furnished his brother money, and he had bought all the property for one dollar, when it would be sufficient to pay the whole debt, Mrs. Calvit’s rights would be wholly unaffected by such unauthorized acts and permissions of an agent acting for her.
    It might be true, that either Mrs. Calvit, or some one acting for her, had done this, and yet it might be known to the bank that Mrs. Calvit had not done it, nor had any one been authorized as agent to do so for her. But surely, a statement by Mr. Hughes, that he has been informed by persons whom he believes, that the bank is informed and believes, that either Mrs. Calvit or some one acting for her, —is not a statement to support an injunction, however true it may be, that the sheriff acted in this manner, while acting as her agent, under the second writ put in his hands by her Or some one for her.
    If this statement amounts to anything, it amounts to a statement of a wrong and injury done to Mrs. Calvit, of which she might have a right to complain ; but surely not of a wrong or injury done by Mrs. Calvit to the Planters Bank, or to Goosey, by any violation of their rights or equities, whose right to have Markham’s property pay the whole debt, if such right ever existed, still exists unimpaired against Markham, but not against Mrs. Calvit. Had complainants, by direct, positive, and certain statements, averred, that Mrs. Calvit, or her agent thereto duly authorized, had received from Markham half the debt, on an execution levied on sufficient property to satisfy the whole debt, and with intent to injure and defraud complainants, had permitted Markham to control the execution, and to sell the whole property under said execution ; and that, under such fraudulent agreement and understanding between Mrs. Calvit and Markham, Markham afterwards furnished the money to his brother, who purchased in the whole property at a great sacrifice, and for half of the said debt, as complainants have been informed and believe to be true ; and bad this statement been verified by the proper affidavit of complainants, — I am not prepared to say it would not have been a sufficient statement to sustain an injunction, if the complainants themselves had had a valid title free from the taint of fraud. But any statement short of this would clearly be mo ground for an injunction. A statement that Mrs. Calvit received half the money from Markham, and permitted him to control the execution for that half, and that Markham afterwards purchased the whole property at a great sacrifice, when, if the property had been legally sold, it would have paid the whole debt, would not be sufficient, without charging that such permission was given with a fraudulent intent to injure complainants, and also a showing that it did injure complainants. But here the statement is not even so strong. It is, that complainants are informed and believe Mrs. Calvit, or some one acting for her, permitted, and that the property sold greatly under its value, as complainants believe ; and the information and belief of complainants is verified by their agent and attorney’s oath, that he is informed and believes, the statement that complainants are so informed and believe, is true. Certainly such a statement, so verified, is not sufficient to sustain an injunction upon the face of the bill. If the sheriff, who was acting as agent for Mrs. Calvit, did, without her authority, receive half the debt, and permit the property to be sold, and to be purchased by Markham’s brother for less than its value, it might afford a ground to Mrs. Calvit to apply to the Chancellor to have a resale. But surely it is no ground of complaint for complainants against her; and if. the whole debt ought to be paid by Markham, or out of Markham’s property, and by any fraud or collusion between the sheriff and Markham, it was sold for half the debt, when it was sufficient, upon a fair and legal sale, to satisfy the whole debt, and either Goosey or the bank have been injured by such fraudulent and illegal sale, upon a proper bill against Markham, they can have the sale set aside, and the property fairly and legally sold. But no case is stated against Mrs. Calvit.
    It is not stated or shown that Markham was bound to pay the whole debt, or that any wrong was done to plaintiffs by a sale of the whole property for less than the whole debt; or that Mrs. Calvit, or her agent, by her authority, permitted the sale for less than its value. But it does appear, the property levied on did not sell for sufficient to pay the debt, and 'that it was sold under execution at public sale. If Mrs. Calvit permitted it to be sold for less than its value, so also did complainants permit it to be sold for less than its value. They had the-same right and power to attend the sale, and bid up the property to its full value, so as to prevent any injury to themselves, if their property was not equitably as much bound for half the debt as between them and Markham, as Mrs. Calvit had. They as much permitted the sacrifice as she did.
    Upon the statements in the bill, there can no question arise as to Mrs. Calvit’s right to cancel the equities between Markham and Goosey,-or between Markham and the bank. Mr. Hughes’s whole argument to this point is foreign to the case. Mrs. Calvit has looked only to her own rights, as decided by the High Court of Errors and Appeals. She was enjoined from collecting more than half her debt by the appeal of Markham from the decision of the Chancellor dissolving the injunction upon the first venditioni exponas. Markham, the trustee of William F. Markham, took an appeal as to half the debt, and during the pendency of that appeal, Mrs. Cal-vit was permitted to take out her second venditioni exponas for the other half of the debt, under which the property of Markham was sold.
    She also took out execution for the other half against Goosey, which Goosey had superseded, and on the dismissal of the super-sedeas by the Chancellor, Goosey appealed to this Court, when it was decided, that Mrs. Calvit had a right to both executions, to collect the whole of her debt out of either, or half of her debt out of each. Under this decision she has acted in strict conformity to the decision and her own legal rights. She has pursued her own rights, and has nothing to do with the equities between Markham and Goosey, or Markham and the bank. Those equities are open between Markham and the bank, and are wholly unaffected and unimpaired by any act done by Mrs. Calvit, or stated against her in the bill of complainants ; nor can she in any way be made a party to any question arising out of the equities between them.
    
      By a sale of all the property of Markham levied on under her second venditioni exponas, she has collected but half her debt, and she seeks to collect the other out of Goosey’s property. Whatever may be the equities between Markham and Goosey, both are legally bound to her 'for the whole debt, as this Court has already finally decided. She is not responsible to complainants, because Markham’s property did not sell for sufficient to pay the whole debt, nor is she in any way interested in the question, whether by the equities between them, and which are not disclosed by complainants bill, one of them ought in justice to the other to pay the whole debt, or each to pay one half. She has not attempted to take or settle the partnership account between them. The brief and arguments of Mr. Yerger are full and conclusive to this point; and the argument and authorities of Mr. Hughes, are based upon no sufficient statements in the bill, and are wholly foreign to the case.
    But complainants, who are fraudulent purchasers of Goosey’s property, under a deed of trust, made to delay, defeat, and defraud the defendant in the collection of her debt, under her decree obtained prior to the 5th of June, 1835, the date of the deed of trust, cannot come into a court of equity under their fraudulent title.
    They could not try the equities between Markham and Goosey, with Mrs. Calvit, even upon a charge of a fraudulent interference on the part of Mrs Calvit, by acts of hers, fraudulently intended to defeat and destroy -those equities. They must come into Court with clean hands ; and while they show themselves guilty of fraudulently assisting Goosey to defraud Mrs. Calvit, they cannot be heard to charge her with fraud. So, too, upon the other ground stated in the bill, that the lien of the original decree is lost by the decree on the appeal bond. The lien of the second decree is good against the fraudulent title of complainants.
    4. It is admitted on all hands, that, on the day the deed from Goosey to Hoopes was executed and delivered, the original decree of Mrs. Calvit was a lien of record by statute on all the property described in said deed.
    What was this lien on that day ?
    It certainly was a vested legal right; as truly and perfectly so, as a legal title to lands, or as any other legal right enumerated under the head of legal rights in Blackstone, or any of the writers on law. Van Ness v. Buel, 4 Wheat. 74 ; 4 Cond. Rep. U. S. 394.
    The mode by which it was acquired, was by obtaining a decree of record ; which decree, the statute declared, should bind all the property of the defendant Goosey. It was a legal right, because the statute law gave the right. It was vested and complete in Mrs. Calvit, from the moment she obtained a decree. True, it. is not a complete legal and vested right and title to any quantity of interest in and to the property conveyed by Goosey. Such is not the nature and character of the right. But still, according to its character and nature, it is as complete a legal and vested right as any other.
    It is a right to have the property sold to pay the debt due by the decree against Goosey, and all persons claiming under Goosey, as heirs, purchasers, or creditors, by title acquired after the date of the decree.
    Such is the nature and extent of the right, and, as such, it is impossible to show that it is not as complete a legal and vested right as any known to the law. As such, this right is as much protected and secured to Mrs. Calvit by the constitution and laws, as any other legal right. It cannot be taken away, she cannot be divested of the right, but by due course of law. The statute of frauds in express terms protects this right, by declaring all conveyances made to delay and defeat creditors of their just claims, debts, and demands, to be fraudulent and void, as against such creditor. A conveyance by a judgment-debtor, of his property, as against the judgment-creditor, who has alien upon it for his debt at the time of the conveyance, is, on this state of the facts alone, a conveyance in the eye of the law to delay and defeat the judgment-creditor, and void by the statute. At Common Law, where the lien was by the execution, and only in pais, and where the lien was so intrinsically defective, that it only lasted while the execution was alive, and while a right to levy and take possession of the property of the defendant existed, still a conveyance, made while the lien existed, was fraudulent, and void against the creditor. In Cowper’s Rep. p. 434, Lord Mansfield says : “-I have known several cases, where persons have given a fair a;:d full price for goods, and where the possession was actually changed, yet being done for the purpose of defrauding (i. e. delaying) creditors, the transaction has been held fraudulent, and therefore void.
    “ One case was, where there had been a decree in Chancery, and a sequestration. A person with a knowledge of the decree, bought the house and goods belonging to the defendant, and gave a full price for them. -Tpe Court said, the purchase being with a manifest view to defeat the creditor, was fraudulent, and therefore, notwithstanding a valuable consideration, void.”
    
      “ So, if a man knows of a judgment and execution, and with a view to defeat it, purchases the debtor’s goods, it is void, because the purpose is iniquitous. It is assisting one man to cheat another.”
    So too in Farrer v. Brooks, 1 Leach, Mod. Rep. 188, the Court say, “The property is so bound by the teste of the.writ, as that a sale made of them bona fide, shall be avoided.”
    Such is the nature, character, and extent of the lien Mrs. Calvit acquired under the statute of the State, by her original decree, and which existed and was known to Hoopes at the time Goosey executed and delivered the deed, under which Hoopes sold, and conveyed to the Planters Bank. Such, too, is the security and protection the constitution and laws give to this legal vested and perfect right.
    The question now is, whether, upon the statements contained in, the complainant’s bill of complaint, as the same are verified by the affidavit of Hughes’s agent for complainants to the bill, Mrs. Calvit ought to be further enjoined from enforcing the lien of her original decree against the property conveyed by Hoopes to the Planters Bank under his deed of trust ?
    In other words, upon these statements, as verified, has Mrs. Cal-vit lost her lien ?
    Did Goosey, by taking a false and unjust appeal from the decree, after he had made his deed to Ploopes, and giving bad personal security in the appeal bond, and thus compelling Mrs. Calvit to obtain an affirmance of her original decree against himself and his securities in the appeal bond, for the debt, damages and costs of the original decree, thereby destroy her lien, and make his fraudulent and void conveyance to Hoopes, a good and valid conveyance as against Mrs. Calvit ?
    This mode of destroying a complete, legal,, and vested right of a lien of record by statute, upon the property of a judgment debtor, by operation of law, and'by the acts of the debtor himself, using the Courts and the law as his instruments, and agains't the will and consent of the creditor, is, if it' exist, a perfect anomaly in the law. It will apply to no other legal right whatever. If it can be made out, it is made out wholly by legal or logical abstract argument and reasoning. There is no direct authority which decides that the lien of an original decree, or judgment, is lost by an appeal of the defendant, and a judgment or decree of affirmance against him and his securities in the appeal bond, for the debt, interest, damages and costs due upon the original decree.
    Noris'it conceived, that any other statutory lien, or Common Law lien, or lien in equity, once acquired, can be lost by the defendants, compelling the holder of the lien to obtain a judgment against him in any court of justice, before he can enforce his lien.
    The arguments and conclusions by which counsel expect to produce so novel a result in the law, must be curious in themselves.
    What are these arguments, and do they by any legal dr logical deduction necessarily end in the conclusion, that the affirmance of the original decree, by a decree against the defendant and his securities in the appeal bond, for the debt, damages and costs due on the original decree, destroys the lien of the original decree ?
    It is argued, that the decree in the High Court ofErrors and Appeals, is not barely an affirmance of the original decree, but is a new decree on the appeal bond, and that the original decree is merged in it, and satisfied and extinguished by it.
    That the 'execution on the original decree remains superseded after the judgment of affirmance, as much as before affirmance ; and no execution is or can be taken out on the original decree after the affirmance.
    That by the decree upon the appeal bond, the complainant, Mrs. Calvit, acquired a more enlarged lien, and better security for her debt, than the lien of her original decree.
    
      These are all the arguments used, and from them the concdusion :is drawn, as a necessary legal or logical inference, that the lien of ■the original decree is lost by the decree upon the appeal bond.
    If the premises were all true (and it is confidently asserted that not one of them is correct in law), yet it is difficult to perceive their "legal or logical connexion with the conclusion.
    How, or why, does it necessarily follow, that the lien of the original decree is lost or destroyed, because the original decree is merged in the decree upon the appeal bond, or because the execution is not, or cannot be taken out on the original decree, or because the decree on the appeal bond gives a more enlarged lien 1
    
    In no other case of a lien for a debt, whether the lien be by •mortgage, or by statute, or at Common Law, is the original lien lost ■or destroyed, by the debt, or the security for the debt, being subse■quently merged in a judgment or decree ; or by reason of the holder of such lien not being able to enforce his original lien, by taking out execution on the mortgage, or other contract, by which his right of lien was acquired ; or because hjs judgment for the original debt ■gave him a more enlarged lien and security, than his original mortgage, or statutory, or Common Law lien. Take the case of an administrator or guardian’s lien for the purchase-money given by ■statute, and acquired by a contract of sale.
    The lien is acquired by the contract of sale ; it vests under the statute so soon as the contract is made. But when the administrator or guardian obtains a judgment on the contract, being of inferior •dignity, is merged and extinguished by the judgment. The administrator or guardian, too, acquires by his judgment a more enlarged lien, being a lien not barely upon the property sold, but on all the property of the purchaser. The execution is not, never could, and never can, be taken out on the contract of sale by which the lien was originally acquired under the statute.
    Yet, will it be contended, from these premises, that the lien, under the statute of the original contract of sale for the purchase-money, is lost and destroyed, and that a purchaser of the property under the purchaser from the administrator or guardian, will acquire a title discharged from the lien of the administrator or guardian, because ■he purchased before judgment ? If not, why, upon these same premises, should a judgment-creditor’s lien under a statute, be lost, as a necessary legal conclusion ? Is there_ any difference in the rights ? Is not a statutory lien of record, acquired by a decree or judgment, as perfect a legal vested right, as the lien of an administrator or guardian, by statute, acquired by a contract of sale ?
    Take the case of a debt secured by mortgage. The creditor obtains a judgment at law upon the note, or rather evidence of debt, secured by mortgage. He're the note is merged in the judgment, and the judgment gives him a more enlarged lien upon the property of the debtor.
    The judgment upon the note at law, is every way as much a judgment upon the mortgage itself, as a judgment in the High Court of Errors, on an appeal bond, is a judgment upon the original judgment. Both, however, would be collateral judgments ; but, in truth, no judgment is rendered in the High Court of Errors and Appeals on the appeal bond. It is purely a judgment of affirmance against the defendant and his securities. But, if otherwise, then the cases are parallel, and in both cases the judgments are merely collateral. No execution could be taken out on the note or the mortgage. Still will it be said, the judgment upon the note at law extinguished the lien of the mortgage taken to secure the payment of the note. Suppose, also, a decree of foreclosure on the mortgage. The mortgage is merged in the decree, so far as relates to the debt due upon it, and by the judgment at law on the note, the note is merged, and a more enlarged security for the debt secured by the mortgage, is obtained, and no execution could be taken out on the note or mortgage. Yet a purchaser under the mortgagor, after the registry of the mortgage, and before judgment on the note and decree upon the mortgage, might equally contend that he purchased a good title against the mortgagee, because the lien of the debt was lost by the subsequent merger of the note and mortgage, which created the lien, in the judgment and decree obtained after his purchase.
    Take the cases of the lien of a tailor upon clothes made by him, or of a stabler upon a horse for stabling, at Common Law. Éither may sue and obtain judgment for the debt which gave him thejien. The contract by which the lien was acquired, is merged in the judgment, a more enlarged lien is acquired, the execution is taken out on the judgment in which the contract which gave the lien is merged. Yet the lien is not lost. And is a'lien of record, acquired by a decree under a statute, a less perfect vested right, and less protected and secured by the constitution and laws, than mere liens in pais ? The truth is, in all these cases, and others, such as mechanics’ liens by statute, the lien originally acquired by mortgage or other contract in pais, so far from being lost and destroyed by the merger of the contract by which the lipn is acquired, in a judgment upon .the contract, is vivified and invigorated by becoming incorporated in the judgment from its commencement, to which the judgment, in all cases, relates back, in order to enforce the rights of the parties according to the original terms and legal obligations of their contract. The judgment by merger does not destroy the rights and obligations arising out of, and vesting in the parties, by the laws of the country under the contract, merely because it extinguishes the contract. On the contrary, when it merges, or destroys, or extinguishes the original contract, as a security for these rights, it steps into its place, as a higher and more efficient security to enforce these legal rights. This legal right, called a lien, is one of the rights under the contract which created it, which the judgment secures and enforces, as much as any other right. It is impossible to say this legal vested right of a lien, acquired by a judgment, a mortgage, or a contract by deed, or in pais, is not from the date at which the right accrued, as much secured, and protected, and enforced in the judgment in which such former judgment, mortgage, or contract is merged, as the right to the money, or debt itself, or any other legal right whatever, arising out of, and vesting by law, statute or common, under such prior judgment, mortgage, or contract. So of liens in equity for the purchase-money, upon notice that it is unpaid.
    The conclusion, therefore, that the lien acquired by the original decree is lost, because the original decree is merged in the decree on the appeal bond, which gives a more enlarged and better lien for the debt, and because execution is taken out on the new decree on the appeal bond, and not on the original decree, is not a legal or logical conclusion.
    If the premises were true, no such consequence would follow, as such a conclusion would .destroy all liens, whether by statute or by Common Law, created by judgment or decree, by deed, or by contract in parol, and would, in effect, be the same thing as to declare that there is no such right known to the law as that of a lien.
    But are the premises true ? Is there any decree rendered in the High Court of Errors and Appeals upon the appeal bond, and is the original decree merged in the decree rendered against the defendant and his securities ? Is the second decree a more enlarged lien, and better security for the debt than the original decree ? Is not execution taken out on the original decree ?
    There certainly is no decree rendered on the appeal bond, nor is there any forfeiture or breach of the condition of the appeal bond at the time the decree is rendered, the condition being “ that the appellant shall pay the debt, interest, costs and damages of the original decree, and perform the decree of the appellate court, provided the .original decree is affirmed. Until the appellant has legally failed to perform the condition, therefore, there is no breach of the condition of the bond.
    But the decree is purely a decree of affirmance rendered against the appellant and his securities in the appeal bond ; not a judgment on the bond, but a judgment against the principal and securities in the bond, not for the amount of the bond, nor for the amount of damages sustained by a breach of the condition, but a judgment against them for the debt, interest, costs and damages of the original decree. By becoming a party to the appeal bond, the security became a party to the suit in Court from the date of the appeal, under a law which makes him equally liable with the appellant, to pay the debt, interest, costs and'damages of the original decree, if affirmed. As a party to the record on the appeal from the original decree, from the moment he has become security and the appeal is taken, the decree of affirmance is rendered against the security as well as the appellant, and upon no other principle could the Court render any decree against the security. It would have no jurisdiction of his-person to render any decree against him upon any other principle". It is simply an affirmance of the original decree against the parties to the-record, for the debt and the legal incidents of interest, costs and damages. The execution is therefore an execution of the original decree affirmed. This is shown conclusively by sec. 162, Rev. Code, 140, which authorizes the clerk to issue execution against the appellant, and the securities in the appeal bond, for the debt, interest, damages and costs of the original decree, when the appellant dismisses or fails to prosecute his appeal; and there is not even an affirmance of the original decree by the appellate court, the same as where there is an affirmance.
    But suppose the decree in the appellate court were as contended, a decree on the appeal bond ; it would then clearly be merely a collateral judgment, and not a judgment on the original judgment. It would be a decree on a bond given to secure the performance of another decree, “ which bond in itself would not operate as an extinguishment of the original decree and then (even if a judgment upon a former judgment would by merger extinguish the latter), the remark of Le Blanc in Drake v. Mitchell, 3 East, 259, would be strictly applicable, to wit, “that the giving of another security, which in itself would not operate as an extinguishment of the original one, cannot operate as such by being pursued to judgment, unless it produces the fruit of judgment.” Suppose the decree had simply been affirmed against the appellant alone, and a Common Law action of debt had been brought on the appeal bond given as a security for the payment of the debt due by the original decree, affirmed, would a judgment obtained on the appeal bond have extinguished the security of the original decree, although it never produced the fruits of a judgment ? How then would a summary judgment, obtained not in the original court, but in the appellate court, and obtained on the appeal bond, a mere collateral-security, have the effect to extinguish the original decree affirmed, when a judgment on the appeal bond, obtained in a regular and full trial by Common Law action, would have no such effect ?
    But in truth there is no judgment on the appeal bond, and the legislature could not by law give the appellate court power to render judgment on the appeal bond, as it would be clearly the exercise of original jurisdiction, which under the constitution does not belong to the appellate court, and cannot be conferred on it by the legislature.
    Nor does the doctrine of extinguishment by merger, apply to securities of equal dignity, as a judgment upon a judgment; or even to an inferior security, where the higher security is taken merely as collateral or additional security, and reciting a pre-existing security. Towpenny v. Young, 3 B. & C. 210 ; Selby v. Forbes, 2 B. & B. 38 ; Bac. Ab. Debt, G ; Cro. Charles, 415. This point is so fully and ably examined by Mr. Yerger, it is sufficient to refer to his brief and argument.
    But as a contrary doctrine seems to have been entertained by some obiter dicta contained in one or two decisions on forthcoming bond judgments in How. Rep., and as those dicta are supposed to be countenanced by decisions in Virginia on forthcoming bonds, and in Kentucky on replevy bonds, I have examined these cases, and- find no such doctrine countenanced by them. They are all cases of liens in pais acquired by the teste or delivery of a ji. fa. to the sheriff, and merely decide that a productive levy of a fi. fa. on sufficient property, satisfies and discharges a judgment, and that under such a levy, where a replevy bond or a forthcoming bond is given and forfeited, that such levy is a satisfaction, and that the lien is lost, because the sheriff’s right to the possession of the goods is gone, under the execution, by the forfeiture of the forthcoming bond. 3 Munf. 434, 439 ; 1 Wash. 92; Walk. Rep. 175, 251, 267 ; 1 How. 66, 99 ; 3 How. 1, 60, 417 ; 4 How. 351; 5 How. 237 ; 4 Bibb, 572; Hard. 188,372, 518; 2 Wash. 189 ; 1 Call, 492 ; 2 Ljttell, 116. Being liens in pais, and by their nature depending upon the right to the possession of the thing by virtue of the lien, when the right of possession was gone, the lien was gone. But here, in these statutory liens, acquired by matter of record, the lien does not depend upon the right of possession under an execution.
    These cases by no means tend to show, that the original decree is merged and extinguished by the judgment against the appellant and his securities in the appeal bond, much less do they show, that in consequence of such merger, and because execution cannot be had on the original judgment, that therefore the right of lien acquired by the original judgment is lost or destroyed.
    Nor is it true, that taking an appeal bond, and obtaining a judgment thereon against the principal and security in the bond, discharges the lien of the original decree, because it gives a better or more enlarged security. We deny that it gives a better and more enlarged security ; and how does it appear from the record or the law, that the security is better or more enlarged ? Certainly it does not so appear by any legal conclusion, nor is it shown to be so by any facts. On the contrary, it fully as much appears to this Court that the security is diminished and not so good as the security afforded by the lien of the original decree ; as otherwise Mrs. Cal-vit would not now be contending for the security of the original decree.
    But suppose the security is enlarged and better ; so far, for that reason, from the legal inference being, that therefore the lien of the original decree is discharged, the very reverse is the plain intent of the statute. The statute requires that security shall be given on an appeal or writ of error, which is to operate as a supersedeas. To give security, certainly requires that security additional to that which the plaintiff already has shall be given. Upon what principle can the giving new and additional security under the requirements of the law, be construed to impair or destroy that which already exists ? The contrary is clearly established to be the law, by the decision of the Court, in 4 How. 351, and the case cited from 3 East, 259 ; 3 B. & C. 210 ; 2 B. & B. 38, and Cro. Charles, 415.
    Whether execution is or is not taken out on the original decree, when issued upon the original decree as affirmed against the principal and his securities, or not, does not affect the question, whether the lien of the original decree still exists. If appears to me clear, that there is merely an affirmance of the original decree, and that the execution is as much taken out on the original decree, when it has been so affirmed in the appellate court, as it is issued by the clerk on the original decree, when the appellant, after giving his bond, fails to prosecute his appeal, and it is dismissed for want of filing the record, without any judgment of affirmance.
    But if otherwise, the lien of the original decree still binds the property of the defendant, so as to render void all conveyances and alienations made by him subsequent to the date of the decree, as against a purchaser under the execution upon the decree affirmed upon the bond.
    In conclusion, the premises upon which complainants found their conclusion, that the lien of the original decree is lost, are false premises. They are not law. It is not true, that there is a judgment on the appeal bond in which the original decree is merged, and by which it is extinguished. It is not true, that execution is not taken out on the original decree when affirmed. It is not true, that a better and more enlarged security is acquired.
    Neither, if these premises were all true and correct, would it follow, as a legal or a logical conclusion, that the lien acquired by the original decree was lost and destroyed, any more than liens acquired by contracts of sale by administrators or guardians, or liens acquired by mechanics by contracts for buildings and materials, or liens acquired by tailors, farmers, tavern-keepers, by contracts on parol, or liens in equity for the purchase-money of lands sold, are lost and destroyed by the merger of such contracts, by which such liens are acquired, in judgments afterwards obtained to enforce such contracts.
    Complainants have no direct authorities, no decided cases, to show that the lien acquired by obtaining a decree, can be so destroyed or lost, and they fail to show it by argument. But express, direct, and high authority is shown against them. The case in 12 Wheaton, which has been repeatedly followed by this Court, and upon the very point now involved in this case, is decisive.
    Marshall says in that case, “ The cases cited of executions against personal property, do not, we think, apply. In those cases, the lien is not created by the judgment, or by any matter of record.”
    Again ; “ In the case at bar, the judgment is notice to the purchaser of the prior lien.”
    Again ; “ A statutory lien is as binding as a mortgage, and has the same capacity to hold the land, so long as the statute preserves it in force.”
    Again ; “ This lien commenced with the judgment, and continues for five years. The principle is believed to be universal, that a prior lien is entitled to prior satisfaction out of the subject it binds, unless it be intrinsically defective, or displaced by some act of the party holding it.”
    Tire right of lien, acquired by the decree under the statute, being a complete legal right, cannot be lost or destroyed, but by some act of the party holding it. This is a universal principle of law, as applicable to this right of lien when once acquired, as it is to any other legal right known to the law. So said Chief Justice Marshall, and all the other Judges of the Supreme Court of the U. States, and so has this Court repeatedly decided.
    The injunction in this case was properly dissolved in the Court below.
    1st. Because the statements in the bill are not verified by affidavit.
    2d. Because complainants, by their statements, show that they have no title to the property under the deed of trust to Hoopes, which could neither operate as a bargain of sale nor a feofment at Common Law, to convey any estate out of Goosey to Hoopes, but the title to the property is still in Goosey.
    3d. Because, at the most, a life estate only was conveyed to Hoopes, and Hoopes had authority to convey only a life estate, and his deed for an estate in fee simple is therefore void.
    4th. Because the conveyance to Hoopes was not bona fide, and even if for'a valuable consideration, was fraudulent and void against Mrs. Calvit, being intended to delay and defeat her decree.
    5th. Because the conveyance to Hoopes and the bank was subject to the lien of Mrs. Calvit’s original decree, which lien is neither lost nor destroyed by any act of hers.
    
      George 8. Yerger, for appellee.
    This is a motion made to dissolve an injunction for want of equity on the face of the bill. The Chancellor sustained the motion, from which an appeal was taken. We insist that it ought to be dissolved.
    1st. Because the deed of trust set out in the bill, and the proceedings under it as therein stated, show a prima facie case of fraud.
    2d. Because the decree of Mrs. Calvit against Goosey, was a lien from its rendition, and the subsequent act of Goosey, in taking an appeal to the High Court, suspended, but did not destroy the lien; and when the decree was affirmed, it was affirmed with all its incidents, one of which was the lien. And
    3d. The allegation insisted on by the other side, that Markham’s property was levied on, and sacrificed, does not take away any right or lien which Mrs. Calvit possessed.
    
      As to the first point, the decree of trust permitted Goosey to remain in possession ; and after the sale was made, he still retained possession of the property, and used it. The decree was made not merely to secure the debt due, but its effect, and the intention manifested from acts of the bank, as presented on the face of the bill, without some explanation, is prima facie evidence of fraud. (See Judge Winchester’s brief on this point.)
    2. The second point, to wit, whether the lien is destroyed by taking an appeal, has been so fully and ably presented by the opinion of Judge Sharkey, delivered in this cause, that I intend to do but little more than refer to that opinion'and the authorities cited in it.
    This cause has been about sixteen years in Court, during all which time the complainant has been most diligenly asserting her rights, and now, after she has finally succeeded, the debtor is about to defeat her, by having conveyed away the property bound by the original decree, after that decree was rendered, and before it was affirmed in the High Court. It is believed that a few elementary principles must settle this question in our favor.
    The decree was a joint one against Goosey and Markham, who were parties. Markham’s property was levied on, and his share paid by its sale.
    Judge Sharkey, Chancellor Buckner and Judge Turner, have all, after the most elaborate argument, decided this point in our favor, and it is believed the argument of Judge Sharkey is unanswerable. A few additional authorities will be cited, in support of that opinion, and the principles there laid down.
    1. At Common Law, there can be no doubt, that the effect of an appeal is merely suspension, not the destruction of the judgment or lien which is the consequence of the judgment appealed from. 4 Coke’s Institutes, 340, Puckman’s Case ; 6 Coke’s Rep. 18, b ; 4 Leigh’s Rep. 147 ; Shelford on Marriage and Divorce, 563, cited 31 vol. Law Library, 330.
    It is inconsistent to say a judgment which is affirmed, i. e. declared to be correct, is destroyed by the judgment which says it is correct; the judgment of affirmance affirms it with all its incidents, one of which is the appeal.
    2. It is also well settled, that when the law gives a lien to a judgment, no act of the judgment debtor, without the consent of the creditor, can impair or take away the right vested by law. Rankin v. Scott, 12 Wheaton Rep. 176 ; Overton v. Perkins, M. & Yerger, Rep. 367; 1 Haywood, Rep. 60, 61, 62; Argument of Judge Haywood, and authorities cited by him.
    It is supposed, that because the Court, when it affirms the judgment below, also gives a new judgment, that the new payment extinguishes the one rendered below. This is not so ; the new judgment carries into effect the old one. It does not merge or extinguish it; both being judgments of courts of record, are of equal dignity. The decisions are numerous, that a second judgment, founded'on the first, does not extinguish the first. 11 John. Rep. 513 ; 9 Wendell, Rep. 53 ; Preston v. Preston, Cro. Elizabeth, 81, 304v716.
    And in this identical case, Markham, after the decree against him, and before it was affirmed, conveyed his property ; and yet the Court enforced the lien of the first decree. Markham v. Calvit, 5 How. Rep.
    And in England, when an action of debt is brought on a judgment, and a new judgment is rendered, it does not extinguish the original judgment or its lien ; the lien still exists, and may be enforced after the rendition of the last judgment. 1 Salk. Rep. 80. This authority is direct and conclusive.
    The act relating to the High Court of Errors and Appeals, How. 6 Hutch. 535, and the-43d section of the law relating to trial and judgment, do not therefore alter the rule of law, that the writ of error and affirmance on it does not destroy the lien.
    The effect of these statutes, which merely authorize the new judgment to be rendered, is so ably examined and stated by Judge Sharkey, in his opinion, that I will content myself by referring to that opinion.
    In fact, the principle of this case was decided by this Court a few days ago, in the case of Pickett v. Marlow, where the lien of the elder judgment was suspended by the valuation law, to which opinion I beg leave to refer.
    The cases relied on, where forthcoming bonds have been taken and forfeited, have no application. By the levy on the property, its re-delivery to the debtor, upon the execution of the bond, and the forfeiture of the bond, the courts have decided, that these acts, that is, the levy, re-delivery, and forfeiture of the bond, operate a satisfaction of the’ first judgment. This may be so, but the cases are wholly different.
    Upon the third point, I imagine all the Judges will agree. This point was before the Court, and was decided by Judges Sharkey and Turner ; but whether it was or was not, the question is, whether the decision was right. I maintain it was, upon the clearest principles.
    The question is, whether the allegations in the bill show that the whole judgment was satisfied ? The bill alleges a joint decree in favor of Sarah Calvit, against Markham & Goosey, for upwards of $14,000 ; that an execution issued on the decree, and was levied on Markham’s property sufficient to satisfy it; that the saje of this was stayed by injunction ; that afterwards, a second venditioni ex-ponas issued on said decree. “ And that said Sarah Calvit, instead of directing the property levied on to be sold, received from said William F. Markham one half of the money due on the execution, and permitted the said Markham to have control of so much of the execution ; and that complainant is informed, and believes, that Markham furnished the money for which the whole of the property was bid off, under said venditioni exponas, which was purchased by a brother of said Markham, at a great sacrifice, and greatly below the cash value thereof, when, had the law been pursued, the execution would have been satisfied ; and that she now is endeavoring to make the balance out of the property conveyed by Goosey to complainant.”
    There is no allegation in the bill that Goosey was a surety for Markham. The contrary is the fact. They were partners; the decree is joint against them as such ; each one is therefore a principal for the whole amount, and is liable for the whole, or a part be made of each. This point was decided in the case of Calvit v. Markham, 5 How. Rep. 431.
    In that case, the purchaser of Markham’s property, after the decree below was rendered, but before it was affirmed, filed a bill to compel the complainant to make one half out of Goosey; the Court decided, that they were not sureties for each other, each were principals, and Mrs. Calvit might make the whole out of either.
    
      If Goosey had been a surety, and the creditor had released or relinquished a security or property of the principal, without the consent of the surety, the surety might be relieved in equity. But the principle cannot apply where both are principals, and so considered in law and equity.
    The difference is manifest; where there are two joint debtors by judgment, if time is given to one by contract to pay the judgment, this will not discharge the other; but if the other was a surety, it would, provided the creditor knew he was a surety ; for if he did not know it, it would be no discharge. 3 Paige, Rep. 614.
    And it has even been held (in the absence of statutory provision), that a joint judgment against two, although one was surety in the contract, made them both principals in the judgment; and that time given to one did not discharge the other, although he was surety in the contract before judgment. 3 Wheat. Rep.
    Be this, however, as it may, no case ever was decided, that where a judgment was against two principal debtors, that as between them, or those claiming under them, anything but satisfaction discharged the judgment.
    Let us see what the substance of the allegation is. It is somewhat indefinite, but it amounts to this, — that property of Markham’s sufficient in value was levied on ; that Mrs. Calvit permitted him to control the execution as to half; that the property was sold and bid off by Markham’s brother, at a sacrifice, greatly below its cash value ; and that the money for which it was bid off was advanced by Markham, and paid by him to Mrs. Calvit.
    Do these facts amount to a satisfaction of the judgment ? for unless they do, it is still operative. If it is satisfied as to Goosey, it is satisfied as to Markham; there can be no satisfaction as to one, which will not be a satisfaction to the other ; as in the cases cited by Mr. Hughes, when the body of one joint debtor is taken, and is voluntarily discharged by the creditor, this is a satisfaction as to both.
    It is therefore clear, if this judgment is not satisfied as to Markham, it cannot be as to Goosey, who is a joint principal. The very statement on its face shows it is no satisfaction. What is the statement ? Why, that property of Markham’s sufficient to satisfy it was levied on ; this property was sold, and because Mrs. Calvit did not choose to bid, it was sacrificed, and only sold for one half, which Markham’s brother purchased ; and that Markham paid the money to Mrs. Calvit, for which it was sold ; and this amount was credited on the execution.
    Now, let me ask any jurist, what is to prevent an execution from .issuing against Markham for the balance ? Could it be done ? Unquestionably it could ; because, although ‡100,000 of property was levied on, yet if it only produced $8000, the judgment is only satisfied to that amount. Could Markham say it was satisfied, if another execution issued against him ? Surely not. If he cannot, it is because the judgment is not satisfied ; if it were satisfied, he could stop it.
    Mr. Hughes cites many authorities to prove that a levy on personal property is a satisfaction. This is true only when the levy is not shown to have been disposed of; for when a sale has been made of the property, the produce of the sale is only to be credited. So if property levied on, is restored to the debtor, it is no satisfaction ; or, where it is accidentally destroyed. A levy on personal property is, therefore, legally speaking, prima facie evidence of satisfaction. And until the levy is disposed of, no execution can run.
    Suppose in this case, that Markham’s property, to double the amount, had been levied on, and Markham paid for, and the plaintiff released the levy and restored the goods, — will any lawyer pretend that this satisfied the judgment ? Surely not. Does it, then, make any difference that the property was sold, and produced one half, or was sacrificed. The authorities on this point are ample. 19 Wend. 80 ; Morrow v. Hart, 1 Marsh. 292 ; Duncan v. Harris, 17 Serg. & Rawle, 436 ; 8 Cow. 166. And see Pickett v. Marlow, decided this term, by Judges Sharkey and Thacher.
    The position assumed by Mr. Hughes, that the moment sufficient property is levied on, the execution is considered satisfied, is not the law ; the above authorities prove it, and the authorities he refers to were cases where the levies were not disposed of, or are mere general obiter of the courts, without any specific application. If I am not mistaken, this point has been decided by the Court in some case not yet reported. The effect of the levy is merely suspension until it is disposed of.
    
      Judge Hughes says, from the time of the levy, therefore, the title of complainant was complete. Let us see how his doctrine works. -
    The judgment is a lien on the property in the hands of the Planters Bank; it is afterwards levied on one hundred negroes ; this makes the Planters Bank title complete, says Judge Hughes. Well, the negroes all die before the sale. If the title was complete when levied, the subsequent death of the negroes cannot divest it. Would he argue seriously in this case, that the judgment was satisfied, and the lien gone ; or, suppose the negroes were sold, and the plaintiff would not bid, and there was no money in the country, and the negroes only brought one half the judgment, would the title of the Planters Bank be complete ? Or, suppose they were restored by the creditor to the debtor, r\d time given to him, did this satisfy the judgment or destroy his liwi ?
    If, then, the judgment 'Vas not satisfied, and could not issue against Goosey, if his property is sold, it will pass the title from the date of the judgment, \
    But Judge Hughes says the complainants are purchasers from Goosey. To secure debts due to them from Goosey, they took a mortgage from him ; this mortgage was made after the decree, but before any proceedings on the execution. They made no new advance, nor did they buy the property because a sufficient quantity of Goosey or Markham’s had been levied on to satisfy it. If sufficient property had been levied on, and they, in consequence thereof, purchased other property, and the plaintiff then fraudulently released the property, equity might interfere. But no such case is here, and it is believed no case can be found in the books, which will sustain the position taken by complainant’s counsel. The cases relied on are 6 Wendell, and 3 Yerger.
    In the case in 6 Wendell, goods sufficient to pay the judgment were levied on. The plaintiff in the execution took the goods from the sheriff, and gave him a receipt to have them forthcoming at the sale ; after which, some land of the debtor’s, sold by him after the levy, was levied on. No disposition was made of the levy on the goods. No sale was made of them ; the. Court stayed the execution. Some general expressions .are used by the Court, that a levy was a satisfaction, &c., which must be confined to the facts, the levy was made and was not disposed of. But suppose in that case it had appeared that the goods levied on were sold, and because the plaintiff would not bid, were sacrificed for $50 ; could not an execution be issued for the balance, and levied on the land ?
    The case in 3 Yerg. (Young & Whitcomb v. Read, p. 297), merely decides that a levy on goods, and a delivery bond taken and forfeited, satisfies the first judgment, and an execution cannot issue upon it. In Tennessee, as here, they have a forthcoming bond law, and the levy and surrender by the sheriff, was not the act of the plaintiff. In the case at bar, the question is, whether the judgment is satisfied ; if it is, no execution can issue against either Markham or Goosey ; if it is not, it can issue against either.
    The Planters Bank did not purchase, even after the levy, —nor in fact ever purchased. The mortgage was made by Goosey long before the levy on Markham’s property, to secure debts ; they are not purchasers without notice, but stand in Goosey’s shoes, and if he is bound, they are bound.
    Upon the whole, I consider that the decree of the Chancellor ought to be affirmed.
    
      Robert Hughes, for appellant.
    (The original argument, by Judge Hughes, upon the first discussion of this cause, and its decision by the Court, had been in part withdrawn from the papers ; his brief on the re-argument is accordingly substituted in its stead.)
    The question which, in the opinions delivered by two of the members of the Court, is said to be the principal and only question in the cause, is, —Whether, when a case is taken up, by appeal, to the High Court of Errors and Appeals, and the decree of the Court below is affirmed, and a decree is rendered against all the obligors in the appeal bond, as well principal as securities, for debt, damages and costs, the lien of the original decree is lost, or still continues ?
    Upon this question, a majority of the Court have said, that the lien of the original decree is not lost, but still continues. This opinion counsel respectfully asks leave to combat in the amended petition, .and upon consideration .of what he says, that a re-argument be granted ; as has been correctly said, the decision of the question depends upon the construction of some of our statutes. The first to which the attention of the Court will be called, is to be found in the Revised Code, 154, s. 20, and is in these words :
    “ A certified copy of the bond, required by law to be given by the appellant or plaintiff in error, on all appeals, writs of error, or supersedeas, shall be transmitted by the clerk of the Court below, with the transcript of the record in the cause in which such appeal was taken, or writ of error, or supersedeas granted ; and in case the judgment or decree in the Court below shall be affirmed, or the appellant or plaintiff in error shall fail to prosecute the same to effect, the Supreme Court shall enter up judgment or decree against all the obligors in such bond, both principal and security, for the debt, damages and costs, which may be adjudged to the appellee or defendant in error; and it shall be the duty of the clerk of the Court below, on the certificate of the clerk of the Supreme Court, to issue execution thereon accordingly.”
    The first question which arises in the construction of this section, is, what does the plain import of the language used show to have been the intention of the legislature ? Was it the intention to carry into effect the judgment in the Court below, or the judgment in the Supreme Court? We think but one answer can be given to this question, and that 'is, — that it was to carry into effect, and execute the judgment of the Supreme Court. The language is, that when a judgment or decree is affirmed, then a judgment or decree shall be rendered against all the obligors iii the appeal or writ of error bond, for the debt, damages and costs, &c. And it shall be the duty of the clerk of the Court below, to issue execution on the certificate of the clerk of the Supreme Court thereon accordingly. Issue thereon. What on ? Not on the judgment in the Court below, which had been affirmed, but upon the judgment against the obligors in the bond. If it had been the intention to issue the execution upon the judgment in the Court below, some expression would have been used showing that intention. None such, however, are used. But upon the certificate, an execution issues thereon ; that is, upon that which had previously been spoken of in the previous sentence, the judgment against the obligors in the bond. It is' to be observed, too, that this section standing alone, without being read in connexion with a previous or previous sections in the same statute, is imperfect; for note, that the execution is to issue on the certificate, &c. On what certificate ? None is provided for in the section. If it had been the intention to make the section complete in itself, without reference to other provisions in the same law, it would have been said, on a certificate thereof, not on the certificate. The, then, refers to something else, and that something else is the eighth section of the same law: see Revised Code, 150, which provides in part, in substance, “That when a final judgment or decree shall be rendered or passed in the Supreme Court, &c., it shall be the duty of the clerk, within twenty days, to certify such final judgment or decree to the clerk of the Court below, together with a bill of all costs and damages, if any assessed, &c.” Upon such a certificate-as this, the execution is to issue. The twentieth section, which has been just referred to, is the latter provision of the statute; and if there was anything in it irreconcilable with the eighth section just referred to, then the last provision would prevail, and the first would be repealed. In the two provisions, however, there is nothing irreconcilable; they both can stand together ; and, when amalga-ted, will read thus: The Supreme Court, where they affirm a judgment or decree, shall give judgment or decree against all the obligors in the appeal or writ of error bond, for debt, &c.; and, thereupon, the clerk of that Court shall certify this judgment or decree to the Court below ; and, upon such certificate, the clerk of the Court below shall issue execution, to carry into effect this judgment or decree. Now, we would here ask the question,'— Is there anything in the statute in which these two sections are found, or in any other, which in the slightest degree tends to show that it was the intention of the legislature to enforce the judgment in the Court below ? If there is, we have, after diligent search, been unable to find it. The evidences to the contrary are abundant, not only in these sections, but in another which will directly be referred to. Those evidences are, the words used : ' “ When a final judgment or decree shall be rendered in the Supreme Court, it shall be the duty of the clerk to certify such final judgment or decree“ and it shall be the duty of the clerk (below) on the certificate, to issue execution thereon.” Again, we find this clause in the eighth section: “And any decree, certified as aforesaid, to the clerk of the Superior Court of Chancery, or register of the Orphans’ Court, of any county in the State, shall be carried into effect in the same manner, in all respects, as if such decree had passed in the Court below.” See also section 19, p. 154. If any proof had been required, besides that found in the previous sections referred to, it is furnished by this clause ; for the provision, as is seen, is, that such decree shall be carried into effect, in the manner in all respects as if it had been rendered in the Court below. How then, in the face of this, can it be insisted that the legislature intended, on the affirmance of the decree or judgment, to carry into effect, in all respects, the judgment or decree in the Court below. It is true, it would have been an anomaly if the legislature had said that the Court should affirm, and then, without anything else, had said that the judgment or decree affirmed should not be carried into effect.' Something else has been said, and that something is effectual.
    If it has been proved, that the decree or judgment in the Supreme Court, on an affirmance, is only intended to be enforced, it may be admitted, for the argument only, that the judgment in the Court below, being affirmed, is a lien under the act of 1824. The question recurs, can that lien be enforced? The record, by the appeal or writ of error, is the Supreme Court; and even after affirmance, an execution cannot isssue from and upon the judgment in the Court below, unless there be a remittitur of the record, or some mandate from the Supreme Court. 3 Bac. Abr. Execution, E. p. 401.
    The giving the bond according to the requirements of the statute, and the grant of the appeal or writ of error, operates as a supersedeas by the very terms of our statutes. Revised Code, 139, section 149.
    While this supersedeas stands, and is in force, no execution can issue on the judgment or decree in the Court below; and, in cases of affirmance, no provision is made by which it can be discharged, or judgment or decree rendered which have the effect to discharge it. But, on the contrary, such provisions are made, that the super-sedeas is perpetual, and the supposed lien in the Court below never can be enforced. In the opinion of the majority of the Court, it is said, “ It is no doubt true, that a lien, without the means, either present or future, to enforce it, cannot exist;” which, it is presumed, cannot be questioned, and is direct in its application to this case. The appellee in this case, Mrs. Calvit, it is said, has a lien; but it has been shown, if it be true that she has such a lien, that no execution can be issued on the judgment by virtue of which the lien exists. She has no means, present or future, to enforce that lien ; therefore, though it may exist in idea, it does not exist in fact.
    2. But suppose, as to judgments affirmed, against principal and surety, it may be thought that the judgment in the Court below can be enforced, and thereby the lien made effectual, — for there is a diversity to be noted between judgments and decrees, — then we say, and will now endeavor to prove, that a decree affirmed in the Supreme Court in like manner, against principal and surety, cannot be enforced in the Court below, and by that means the lien in that Court made effectual.
    The clause of the eighth section before referred to, uses strong language ; and until that language is reasoned away, or the force thereof somehow avoided, the lien of the decree in the Court below cannot be enforced. The language, in such part as it is now necessary to refer to, is, that the decree certified as aforesaid, that is, the decree in the Supreme Court, shall be carried into effect in the same manner, in all respects, as if such decree had passed in the Court below. Now we would inquire, In what manner would a decree be carried into effect in the Court below ? It would be done, where the demand was for money, by execution, or writ of fieri facias, against the goods and chattels, lands and tenements of the defendants, whether those defendants were principals or sureties ; and to make the execution effectual, the act of 1S24 would step in and declare that the decree was a lien upon the property, real and personal, of the defendants, from the day of its date — not from the day of the date of a decree in some other Court, superior or inferior — and in this manner the decree so certified is to be carried into effect, by fieri facias upon the decree, which is a lien from the day of the date of rendition in the Supreme Court, and not in the Court below, upon the property of the defendants. To us, it seems that this reasoning is obvious, and that there is no escape from it. Prior to the passage of the lien act of 1S24, a judgment or decree ivas no lien, but the lien bore date from the time that the execution came to the bands of the sheriff. Under the law, as it then stood, there was a manner of carrying decrees into effect; that manner was by execution, or writ of fieri facias, which was a lien upon the defendant’s property from the time it came to the hands of the sheriff. Since the act of 1824, the same manner is by the same execution ; but upon a decree, having a lien-from its date, and the manner of making the lien effectual, is by execution. Without the lien from the date of the decree, the decree cannot be carried into effect^ the lien, therefore, is a part of the manner of enforcing compliance with the adjudication and command of the Court as contained in the decree. The result, as we believe, is, that the decree of the Supreme Court, being to be enforced as if it was a decree in the Court below, the lien is of the Supreme jCourt decree, and not of the decree in the Court below.
    3. We will now more particularly address ourselves to the consideration of the principles involved in the opinion of the majority of the Court.
    We would respectfully beg leave to dissent to the proposition, that when the act of 1824 provided, that in all cases the property of the defendant shall be bound and liable to any judgment from the time it is rendered, it had reference more particularly to judgments of the circuit courts. The term used is, any judgments, and ■as well embraced judgments in other courts as those in the circuit courts. At the time, there were in the State five different courts, which might render judgments and decrees, to wit, courts of justices of the peace, the county courts, circuit courts, the supreme court, and the superior court of chancery. On what principle then it is, that one more than another of these courts were intended by the legislature, it is difficult to perceive. Nor do we see what is to he the effect of establishing the position, that the judgment of a supreme court was not a lien until the act of 1824. This is undoubtedly true, but it is as true when applied to the circuit courts ; the judgments of the circuit courts were not liens until 1824. The passage of the act of 1824 gave no more effect to the judgments of one tribunal than to another. It took nothing from one and added to the other, repealed nothing as to one, leaving the incidents of the other to stand ; but merely attached to all judgments, to be rendered in all courts, a lien from their date.
    We have heretofore attempted to demonstrate, that if there was a subsisting judgment in the Court below after the judgment of affirmance, and judgment against principal and surety in the bond, in the Supreme Court, and consequently a subsisting lien, yet that that lien could not be enforced, because execution could not issue upon it. We will now try also to demonstrate, that the judgment below, in the kind of case under consideration, is destroyed, satisfied, merged or extinguished, so that it can have no efficacy. We do not care about terms used, if the effect we insist upon has been produced ; the process and result may be called by this, that, orthe other name, as may suit him who may wish to debate about questions of the kind. We are in pursuit of the substance of the thing, not of the name or shadow.
    We admit the rule to be, that a judgment on an action of debt upon a judgment, is not an extinguishment, satisfaction, or merger of the first judgment ;-that thereby the debt is not paid ; and by consequence, the first judgment and its lien remains, and may be enforced by execution, unless execution has not issued within a year and a day, or when so issued, „until payment. Nor do we insist that a mere judgment of affirmance, or connected with a. judgment for costs and damages in the Supreme Court, is an extinguishment, satisfaction, or merger of the judgment in the Court below. No such principle is contended for. We do not, however, admit the consequences which are attempted to be deduced from the rules which we admit or do not controvert. We do not think it necessarily follows, because an action of debt may be sustained on a judgment, and judgment obtained, without destroying the lien of the first judgment, that a second judgment may be obtained in the same proceeding, in the same suit, either in the same court or in a court of appeal, without destroying the first judgment. The two cases are not parallel. In the former, the suit and judgment on it are collateral to the first, and in the latter the proceedings are a continuance of {be proceedings, and this we take to be the true distinction between the two class of cases. An -analogous case may be mentioned ; A. & B. give a joint and several bond-, A.' is sued in one action and then B. in another; a judgment is rendered in each action execution issues, which is levied upon the property of A. in one case, forthcoming bond taken and forfeited, then the execution is levied upon the property of B. He, B., -insists that the debt is satisfied by the forfeiture of the forthcoming bond in the case against A., and moves the Court to set aside the levy upon his property, to quash the execution, and enter satisfaction. All which the Court refuse, because the one suit was collateral to the other ; there were two separate and independent suits. And although in the one where the forthcoming bond was forfeited, there was a technical satisfaction, yet that did not extend to the other, because the debt was not absolutely paid. But if there had been a suit against A. & B. jointly, then a levy, forthcoming bond, and forfeiture, would have been a 'satisfaction. See McNutt v. Wilcox & Fearn, 3 How. 417.
    So in the case under consideration. The rendition of the judgment in the second suit would not be a satisfaction, because the proceedings in each were collateral to the other ; but the judgment on the proceedings in error is not collateral to the proceedings in the Court below, but a continuance of those proceedings, and having this in view, the Court, in the cases of Clark v. Jlnderson, 2 How. 852, and McNutt v. Wilcox Fearn, above referred to, sayi “ the law will not permit two judgments to' exfst at the same time against the same person, for the same debt; ” it might have been added, in the same suit; thereby their meaning would have been clear of doubt. Upon writ of error from the Common Pleas in England, to the King’s Bench, upon affirmance, execution issues from the King’s Bench, which re.cites the record of recovery in the Common Pleas, the writ of error and the affirmance in K. B. and issues for the amount of the judgment below, and costs and damages for delay in the King’s Bench. 3 Bac. Abridgment, Execution, E. p. 400. Does it follow from this that the execution necessarily must issue on the judgment in the Court below ? The recital in the execution is a history of the proceedings to judgment merely ; notwithstanding this history, the execution issues on the judgment in the King’s Bench, and seeks to make effectual the lien of its own judgment, and not of the Common Pleas. It could not be that the execution in the K. B. issued upon the judgment in the Common Pleas, because in the record from the Common Pleas, there is no evidence of the day on which the judgment was rendered. The statutes of 4 and 5 W. & M. c. 20, and 29 Car. II. c. 3, provide for the docketing judgments and noting the time of siguing upon the roll, and for the registering a memorial of the judgment. 1 Sell. Prac. 509, 510.
    But there is nothing anywhere that requires the day of the rendition of a judgment, which is marked on the margin of the roll, to be inserted in the transcript of the record, set up upon a writ of error in K. B. to the Common Pleas judgment. The record is made out precisely as it was before the statutes were made, requiring the docketing and noting the date of signing thereof, and the register of a memorial. By reference to the form of the record, and the directions for its contents, 2 Sell. Prac. 412, it is seen that, after the judgment final, the record is to be made up precisely in the same way as it is, in order to be docketed. The way of making up the record to be docketed, is set out in 1 Sell. 506, and is by entering the same on the roll, the form of which is given. This roll contains no memorandum of the time of signing judgment, nor is there any memorandum anywhere to be found, which contains the date of signing judgment, except in the memorial, which is made out in this form :
    “ A memorial to be registered pursuant to the statute, &c.”
    , £C Of a judgment in his Majesty’s Court of King’s Bench, of Trinity term, in the 37th year of the reign of King George the Third, between John Cox, plaintiff, and Richard Finn, defendant, in a plea of debt for £1000, and 63s. damages, roll 50.”
    
      “ I do hereby certify, that judgment was signed in the above cause, the 9th day of June, 1798. Robert Foster.” 1 Sell. 510.
    The signing judgment is nothing more than the taxation of costs after final judgment. 2 Sell. 3S5. No evidence of the date of which is found as before stated, in or upon the record or transcript sent to the King’s Bench. It cannot therefore be true, though the .execution in the King’s Bench does recite the judgment in the Common Pleas, that the judgment in Common Pleas is inforced by the execution, because, in order to give a party what he has a right to by elegit, to wit, an extent of one half of the land and tenements held by the defendant at the date of the judgment, it was necessary to know and put down in or upon the elegit, for the direction of the sheriff, the day of the signing judgment. That day by the King’s Bench could not be noted on the writ, because, as already shown, there was no evidence of it in the record from the Common Pleas ; but the date of the judgment in the King’s Bench could be noted, because the record of it was in that Court. The same proceedings on judgment, upon a writ of error in King’s Bench, have to be had as in an original suit, or as are had in the Common Pleas. As before shown, the signing of judgment is the mere taxing of costs after judgment, and the noting the same on the roll. 2 Sell. 285. And then all the provisions as to docketing and noting the day of signing judgment, equally apply, up to the memorial to be recorded of the judgment. If then it has been shown that the transcript from the Common Pleas furnishes no evidence of the day of the judgment, and that the King’s Bench are required to pursue the same course as to signing, docketing and registering a memorial of their judgments in error, as in other cases,it follows that the King’s Bench in such cases enforce by execution their own, and.not the judgment of the Court below ; and no proof from the practice of the Court of King’s Bench is found to sustain the position assumed.
    A case in 1 Salk. 80, is referred to, to sustain the position, that the lien of the judgment in the Court below is enforced by execution upon the judgment of affirmance ; upon that case, it is observed, that “ The objection was made, that the plaintiff could only extend the land which the party had at the latter judgment, but was overruled.” If, in that case, such was the opinion of the Court, then the case would be an authority to sustain the position assumed. We think, upon a more careful reading of that case, it will be seen, that no such opinion was given as that which is insisted upon. The case in Salkeld, referred to, is the case of Erby v. Erby, and so much, and all of the opinion of the Court which bears at all on this question, is in these words : “ It was also objected, that the bringing debt upon the judgment, was a waiver of the lien created by the judgment; for he can, only extend the land that the party had at the time of the latter judgment; but the Court below, that bringing debt upon a judgment, did not postpone this to other judgments ; and, that it was the act of the attorney, and that it would be no waiver, because there was no other remedy, after the year and day, at Common Law.” It is true, that it was objected, that the land only which the party had at the date of the latter judgment, could be extended ; to this, there was no answer by the Court. The reply, which was made, was, that the bringing debt upon a judgment, did not postpone this to other judgments. The question for the consideration of the Court, by the case, was, as to priority of payment, and upon that only the Court adjudicated. The question did not, and could not arise, as to the enforcement of the lien by execution, whether on the first or second judgment. True, arguendo, it was insisted, that if there had been a judgment in the second suit, by virtue of execution upon that judgment, only the land held by the defendant at its date could be extended ; and, that the bringing the second suit, was a waiver of the lien of the first judgment. To which the Court say, that the bringing the second suit was the act of the attorney, and was no waiver ; and then shows, that the year and day having expired, there, was no other remedy at law, but to bring debt on the first judgment ; saying nothing, however, upon the other question. The case was a proceeding in Chancery, and the date of the judgment was only to be considered, in settling priority of payment. Whether a year and day had, or had not expired, without execution, was not at all important; as if, notwithstanding the presumption of payment arising therefrom, the debt was not due, a decree would be rendered for the complainant, according to the date of his judgment. And we think the case does prove* that the lien of the first judgment could not be enforced at law, because the year and day had expired. True, if the party defendants had property that could not be sold by execution at law, but upon which a lien could attach in equity, that lien might be enforced by bill.
    We do think the analogy between judgments on forthcoming bonds, and the effect of them, and judgments of affirmance, and against principal and surety in writs of error, is obvious; both are new judgments, both are in the same proceeding. In one, there is a proceeding, which has the force and effect of a new judgment; and, in the other, there is, in fact, a new judgment in the former. The Courts have decided, that an execution cannot issue on the old judgment; and, in the latter, the law says, an execution shall issue on the new judgment. And no provision is made for the'issuance of execution on the judgment below ; a supersedeas to prevent such issuance is in existence, and the record is in the Supreme Court, without remittitur to the Court below. ’ The term satisfaction, or merger, or extinguishment, may not apply; although we believe one or the other ought. That ought to be considered to be extinct, which once was operative and effective, but which cannot now be seen or enforced. Or, it ought to be considered as merged. It becomes apart of that which attached to it by subsequent proceedings, and without it cannot be carried into effect; and that, too, in connexion with it, and when the subsequent proceedings are those only on which process is issued. Why is it said, that the forfeiture of a forthcoming bond is a satisfaction of the original judgment ? We think, with all deference to the Courts, who have so said, it is not because of the levy on property by the execution on the first judgment, but is so by operation of law, and is not a technical satisfaction. The law is admitted to be, that where sufficient property is levied upon to satisfy the execution, the levy is a satisfaction ; but when, upon giving the forthcoming bond, the property, by command of the law, is delivered to the defendant, and he forfeits the bond, the debt, by virtue of the first judgment, is gone ; and, by the agreement of the defendant, and by operation of law, something new is substituted for that which is destroyed by the proceedings on the first judgment. And this is termed a satisfaction, because no further proceedings can be had on the original judgment. And so in case of affirmance, a judgment is rendered, upon which a writ of error or appeal is taken, and bond given, the judgment in the High Court is affirmed, and judgment rendered against principal and surety, for debt, damages and costs. The whole proceeding, from the commencement of the suit to the final judgment in the Supreme Court, is one proceeding, and one record. The enforcing the judgment, by execution, by the writ of error or appeal, is suspended for the present, as on execution by the forthcoming bond ; and when the judgment is affirmed, as upon forfeiture of the bond a new judgment is rendered against principal and surety. Then the rule, laid down in some of the cases, steps in, and says, You shall not have two judgments-against the same party. And the original judgment is destroyed.
    4. On the former argument, it was insisted, that however it may be true, that the lien of the decree in the Chancery Court is operative, yet, that the whole amount of the execution cannot be chargeable by virtue of that lien ; because, so much of it as is for damages on the affirmance, only operates against principal and surety from the time of the decree in the Supreme Court, which was in 1839 ; and that, consequently, the property formerly owned by Goosey, now owned and claimed by the Planters Bank, is not subject to such lien.
    On this question, it is said “ that the first judgment exists as a lien from its rendition, deriving additional force from its ratification in the Appellate Court as an operative, binding lien, together wilh the accumulation of the legal incidents, or consequences of the judgment, for damages against the principal and his sureties, which are annexed to the original lien as a penalty for delaying its operation.” Were this rule applied to the party only who took the appeal, and thereby produced the delay, then we think there would be some reason in the morality of the rule. But to its correctness as a legal principle, either in its application to the party, or to others interested, we beg leave most respectfully to enter our dissent. The rule is, that the judgment in the Supreme Court, upon the affirmance against -principal and surety for debt, damages and costs, is an accumulation of the legal incidents to the judgment below, and those damages and costs are annexed to the original lien. We admit, that by our statute law, interest on a judgment is to be collected by the officer as an incident to the judgment from its date, and whatever and whoever is bound by this judgment, and liable to pay its amount, is also liable to pay the amount of interest due. This rule, however, is established by a statute, and but for it would not exist, and cannot be made to apply to a case like the one under consideration ; because it needs the judgment of the Court, to enforce by judgment'the right to damages. An incident is defined to be “ a thing, necessarily depending upon, appertaining to, or following another that is more worthy, or principal. A court baron is incident to a manor, and a court of pie poudre to a fair ; these are so evidently inherent to their principals, that by the grant of one, the other is granted.” 3 Jacob’s Law Die. Incident, 398.
    If it were true upon affirmance, that judgment against principal and surety for debt, damages and costs, was an incident, then it would not have been necessary for the Court to do more than give the judgment of affirmance, and the record showing that A. & B. were sureties ; execution might issue, and the sheriff would be authorized to collect debt, damages and costs from principal and surety ; because, being an incident to the affirmance, there was no necessity for the action of the Court; but where interest is due the officer would be holden to enforce the incident. The opinion that the debt, damages and costs, were annexed to the original lien, and thereby became a part of it, can only be sustained upon the ground of an incident. The definition and instances given of an incident, show that they are not incidents. They are not necessarily attached to the principal, the affirmance, but can only exist by virtue of a judgment of the Court before the rendition of the judgment to that effect. This did not and cannot exist, and the law says, that the lien shall operate only from the date of the judgment.
    But again, if they were incidents, they were so to the judgment in the Court below ; they necessarily followed their principal, and without grant, judgment or other proceedings, they could be col- " lected as part of the consequences of the affirmance. Then, suppose an action commenced in a court of law, a capias issued, which is executed and bail taken, judgment rendered, writ of error, judgment below affirmed, and judgment against the plaintiff in error, defendant below, for amount of judgment below and costs, remitti-tur to the Court below, upon which execution by ca. sa. is issued, and returned not found. Upon this the .bail is liable, and he is attempted to be made liable for the whole, by scire facias. Is he liable ? We contend he is not, because the costs are not incident to the judgment in the Court below, where he is bail; and in this we are sustained by the adjudication in the Courts in England. In Smith v. Faldo, Cro. James, 636, error was brought in the Exchequer Chamber of a judgment given in the King’s Bench, and the judgment affirmed, and five pounds costs assessed for delay of execution. The record being remanded, a scire facias was sued against the bail, to bar execution against the bail, as well for the principal debt, as for the five pounds costs assessed. It is now prayed to have supersedeas, because the bail is not chargeable but with the damages and costs of this Court, and not with that which is taxed in the Exchequer Chamber.
    And of this opinion was all the Court, In accordance with this is the opinion of the same Court in the case of Penrudduck v. Er-rington, Cro. Eliz. 5S7, and in the case of Yates v. Doughan, 6 Term Rep. 288. Now if the amount of the judgment, whether for debt, damages and costs, or either, upon the affirmance in the Exchequer, were an incident, and was attached to the judgment in the Court below, then the bail would have been responsible ; but there was no such incident, the judgment in the Exchequer Chamber was a new and distinct judgment, upon which the bail was not responsible ; he was surety for the amount of judgment in the Court below, and could not be charged beyond his agreement; so by the act of 1824, the property in contest in this case was a security for the amount of the decree below, from its date, biit beyond that it was not responsible ; it could not be chargeable in the hands of others, for or upon a decree rendered subsequently to alienation. The property did not belong to Goosey when this judgment was rendered, and could not be chargeable with the lien to the extent of the damages and costs. All which is respectfully submitted.
   Mr. Chief Justice SHARKEY

delivered the following opinion.

The principal question in this case is, does the judgment of af-firmance rendered by this Court, on appeal, against the principal and his sureties in the appeal bond, extinguish the original judgment and destroy the lien created by it, and substitute only a new lien from the date of the judgment of affirmance ?

To support the affirmative of this proposition, the counsel for appellants rely'mainly on the provisions of the 20th section of the Act relating to thexHigh Court of Errors and Appeals. How. & Hutch. Dig. 535, which provides that a certified copy of the bond on appeal, or writ of error, shall be transmitted to the Court above, with the transcript of the record of the cause ; and in case the judgment or decree of the Court below shall be affirmed, or the appellant or plaintiff in error shall fail to prosecute the same to effect, the Supreme Court shall enter up judgment or decree against all the obligors in such bond, both principal and surety, for the debt, damages and costs, which may be adjudged to the appellee or defendant in error ; and it shall be the duty of the clerk of the Court below, on the certificate of the clerk of the Supreme Court, to issue execution thereon accordingly.”

By the forty-third section of the law relating to trial and judgment, How. & Hutch. Dig. 621, it is provided, that in all cases the property of the defendant shall be bound and liable to any judgment, from the time it is rendered. This act undoubtedly had reference more particularly to judgments of the Circuit Courts. Its object was, to secure the plaintiff who might recover judgment in the Circuit Court by making his judgment a lien.

The first thing which strikes the mind in considering these acts, is their respective dates. The first was passed in 1822, and the other in 1824. The judgment of the Supreme Court was not a lien at all until the act of 1824 made it so. We cannot, therefore, control the latter act by the former, but .the latter must have a controlling influence over the former. It cannot be defeated by the operation of the first act, when, but for the second, it could not have had such operation at all. If, then, it was the intention of the legislature to give the plaintiff a lien from the time he recovered a judgment in the Circuit Court, that lien cannot be defeated or qualified by a pre-existing law ; and if such be the necessary effect, then, on legal principles, it would follow that the first should be considered as so far repealed by implication. But I shall endeavor to show that the judgment of the Appellate Court, under the twentieth section, does not destroy the original lien of the first judgment.

A judgment is but a security for a debt, and the payment of the debt is the object of the lien. By law the property of the defendant is bound and liable to satisfy -the judgment; that is, there is a tie, or claim upon it, which remains until the judgment is satisfied. The lien arises by mere operation of law ; it is not capable of being enforced as an independent lien, but it is merely passive, and when the execution is levied, it is not enforcing the lien, but the judgment, the effect of the law being that the property shall remain liable to the satisfaction of the debt. And even if there he a new judgment, this does not necessarily destroy the lien which the law has given, for it is competent for the law to keep the lien in existence, although a new judgment be predicated on the first. The object of the law is not accomplished until the debt is paid.

The commission of the Appellate Court, is to review the legality of the proceedings of the Court below, and if the trial and proceedings have been according to legal principles, then the Appellate Court must affirm the judgment. The law has annexed certain incidents to this affirmation, but these do not essentially change the character of the judgment. Its legal effect is to declare that what has been done, was done rightly ; to declare it to be a legal judgment. The damages and judgment on the bond are but incidents which the law requires the Appellate Court to attach to an already valid existing judgment. They are but cumulative to that which pre-existed. To me it seems a contradiction that the judgment of affirmance, the act .which declares that the judgment was regular,' and constituted a perfect lien from the time it was rendered in the Circuit Court, should be considered as the act which destroys the validity of the lien. Affirm means to ratify or confirm, and not to destroy. Still it is said, this must be the effect, because the original judgment is satisfied, or merged or extinguished by the new judgment. Now Pmaintain that the first judgment is neither satisfied, merged, nor extinguished, by the new judgment of affirmance. Satisfaction is a technical term, and in its application to judgments, it means the payment of the money due by the judgment, which payment must be entered of record, and nothing but this is a legal satisfaction of a judgment. 2 Tidd, 981. It is true, that by payment in pais the defendant may lay the foundation on which the Court will direct satisfaction to be entered, or a levy on sufficient property is held to be a satisfaction. So it was held in Mumford v. Stocker, 1 Cowen, 178, that a judgment recovered on a judgment was no satisfaction or extinguishment of the first judgment, both debts being of equal degree, and the Court accordingly refused to have satisfaction entered, holding also that no satisfaction could be entered until there was actual satisfaction. Now I presume that the interest on the first judgment was embraced in the second, and to this extent at least it was a new judgment.

Nor is the first judgment merged in the second, for both judgments are of equal dignity, and no merger can take place unless one right be inferior to the other. • 4 Jacob’s Law Die. 279. Nor is it extinguished, which, as a legal phrase, means the annihilation or extinction of a right, by its being consolidated with a greater or more extensive right. In its application to debts, an extinguishment takes place only when the original debt is destroyed, as if a feme sole marry her debtor, or if a debtor be made executor at the Common Law, &c. So, taking a security of a higher nature, extinguishes the first security ; but a security of an inferior or equal degree does not extinguish the first security. Cro. Eliz. 304, 716, 727 ; Cro. Car. 86 ; 1 Cowen, 178. Then if the first judgment is neither satisfied, merged, or extinguished by the second, how can the lien be destroyed ? These are all technical terms, but their meaning falls short of the object. If we get clear of the lien of the judgment, we must do so by legal means, and I find nothing which destroys the judgment. It may be suspended, but this will not destroy the lien ; for instance, the plaintiff who gives a stay, suspends his judgment, but does not lose his lien. So is a judgment suspended by injunction, but the lien is not lost. Knowing there is no way by which to get rid of it, I conclude, that it is a judgment still, at least, for all the purposes of the lien.

I think the English practice accords with this view. When a case is taken by writ of error from an inferior Court to the Court of King’s Bench, and affirmed, that Court gives a new judgment, which includes costs, and by the 3 Hen. 7, c. 10, and 19 Hen. 7 c. 20, damages also, and the record being there, execution emanates from that Court; 2 Tidd’s Frac. 11, 26, 27, 28, &c. The only difference between the judgment of that Court and this, is the rendering of judgment against the sureties in the writ of error bond, which in England is obtained by a different remedy ; but including costs and damages, makes it as much a new judgment, as if it were,' rendered against the sureties. The judgment corresponds in form to our judgments. It recites, that the record being examined, and no error being found, it is considered that the judgment be affirmed, and that the defendant in error also recover his costs and damages, which are assessed by the Court, and constitute part of the recovery. When the execution issues, it recites the first judgment, the removal of the record and the affirmance, and commands the sheriff to make the aggregate sum, including the amount of costs and damages, and it issues to the county in which the venue was laid in the original suit. 2 Sellon’s Practice, 220, 387, 419. Why does it recite the original judgment, if that judgment has lost its effect, and why issue to the county of venue ?

In England an action of dpbt may be brought on a judgment pending error, and a second judgment recovered, which the Court will not set aside, but proceedings may be stayed until the determination of the writ of error. 4 Burrow, 24, 54; 3 Term Rep. 643. The conclusion is, that if the first judgment should be affirmed, then the plaintiff may proceed on the second. How could this be if the judgment of affirmance destroyed the first judgment ? By sweeping away the foundation, the superstructure would fall. The latter judgment would of course depend upon the first. Where there are dependent judgments, the reversal of the first destroys the second. 2 Tidd. 1128. Now I apprehend, that the same result would follow if the first judgment were annulled or destroyed by any other means. From these authorities it is plain, that a judgment has all its validity pending error ; but on the supposition that the judgment of this Court destroys the effect of the first judgment, this could not be the case here. The mere suing out of a writ of error would destroy the judgment, for the Appellate Court must either reverse or affirm, and in either case the result would be to destroy the lien the moment a writ of error and supersedeas should be taken. In that case the plaintiff below could not proceed on his judgment, and when he obtained a new judgment, that could only operate from the date of its rendition.

By the statute of Westminster 2, c. 18, the judgment binds half the freehold from the rendition, in case the plaintiff should sue out an elegit; and yet, by bringing an action of debt on the first judgment, it is no waiver of the lien. 1 Salk. 80. A writ of error is like a new action, and according to this authority, it does not destroy the lien in England ; yet, according to the argument of appellant’s counsel, a writ of error would here destroy it. This is easily illustrated. A. has recovered judgment in the Circuit Court against B. B. sues out his writ of error with supersedeas, and then sells his property. It is plain he may do so, because if the Appellate Court affirm, the original lien is gone, and the new one is now defeated by a previous sale. Now, if a plaintiff in England does not destroy his lien by a new suit, for much stronger reasons, the defendant here should not be allowed to destroy it by a new suit, for in general no one can be deprived of his lien without his consent. The case cited above from 1 Salkeld, is a very strong authority. It was a contest between liens by mortgages and judgments. On one of the judgments no execution had been issued for a year and a day. It could not, therefore, be enforced by execution, but a new action was the only remedy. Still, although dormant, it was held to be' a lien. The action on it must have resulted in a new judgment, and when the execution was sued out, it could only be on the new judgment, and yet we see the lien of the original judgment was retained, although it could not be enforced, and indeed never could be enforced on that judgment. The objection was made, that the plaintiff could only extend the land, which the party had at the date of the latter judgment, but it was overruled. The case furnishes a complete answer to the argument, that the lien of the first judgment cannot be enforced, and that there cannot be a lien which cannot be^enforced. It shows that the lien begins with the first judgment, and continues, although there be a new judgment ; that the ■ entering of a new judgment does not destroy the binding power of the old one. It is no doubt true, that a lien without the means, either present or future, to enforce it, cannot exist. But the writ of error merely suspends the remedy. On the principle assumed in argument, it is-an easy matter to show that a defendant may prevent any judgment from operating as a lien. A defendant may either appeal or take a writ of error, and the judgment of the Appellate Court is the same. Now, suppose the moment a judgment is rendered, the defendant appeals, at what period of time could such a lien be enforced ? At none. The appeal is granted the instant the judgment is rendered. There is no time for an execution, for that cannot issue until after the adjournment of Court. The security given on taking an appeal or writ of error, does not compensate the plaintiff for his lien. It is less certain, less effectual, and the law has nowhere directed that the lien shall be surrendered for this security. To give it this effect, by consequence drawn from the provisions of a former law, is to a certain extent to substitute a precarious security for that which the law designed as certain and safe.

The argument mainly relied on is the analogy which the judgment of affirmance bears to the statutory judgment which accrues on the forfeiture of a forthcoming bond, it being insisted that in the latter case, as the judgment is “satisfied,” so it must be in the first. It is now well settled, that the forfeiture of a forthcoming bond has the effect of a judgment, and is a satisfaction of the original judgment. I shall not question these decisions. In the result they are no doubt correct, but it may be questionable whether the term “satisfaction,” was properly applied in those cases. I have already shown what is meant in technical language by this term. One judgment neither satisfies, merges, or extinguishes the judgment on which it is founded, according to the technical meaning of those terms. But there is much greater reason for saying that the forfeiture of a forthcoming bond satisfies the original judgment, than there is for saying that by affirmance the first judgment is satisfied.

A forthcoming bond is never taken without a levy, and a levy on sufficient property is a legal satisfaction. The levy remains until the forfeiture, which then takes the place, and is a substitute for the levy. Here the analogy fails. In the case before us the only satisfaction pretended, is the judgment of the Appellate Court, which judgment is not founded on any new consideration, as the judgment on the bond is, but it is a mere ratification' of the first, a mere declaration that it was correct, a decree to carry it out with the legal incidents, as the Chancellor would carry out the lien of a mortgage by a decree to sell the mortgaged premises.

It is also insisted, that the plaintiff cannot have two judgments, and that consequently the last is the only one which is operative. This might all be true, and still it is competent for the law to preserve the lien of the first. It is true, that a plaintiff cannot have two productive judgments for the same cause of action ; and this, I apprehend, is all that was meant in the case of Clark v. Anderson, 2 How. 852, when the Court said, the law will not permit two judgments to exist at the same time against the same person for the same debt.” It was evidently all that was meant in the case of McNutt v. Wilcox & Fearn, 3 How. 419, when it was also said the plaintiff was not entitled to two subsisting judgments for the same cause of action. A plaintiff cannot have execution of two' judgments for the same cause, but that he can have two judgments of record which exist as judgments at the same time seems to me manifest, unless we can invent other means to get rid of-one than" satisfaction, merger, or extinguishment of the first judgment by the second, for neither of these takes place. It is common in England for the plaintiff to bring a new action on bis judgment pending error, or at least there are several cases in which it was done ; and in one case an application was made to stay the proceedings of the second suit before judgment, but they refused'to do so. Execution will be stayed, but the party is at liberty to take his judgment. Now, in all such cases, there are two judgments, but the party can only have satisfaction of one.

We have been referred to the case of Purdy v. Doyle, 1 Paige, 558, to show that the lien of a judgment is lost by a second suit, and it is there so said ; but I have already cited a case from 1 Salkeld, which is directly the other way, and which must be the law, unless the first judgment can be annihilated or disposed of by the second, by making it of higher dignity.

We have also been referred to a case in 3 Yerger, to show that an injunction bond destroyed the lien, because on that bond judgment was to be rendered. It seems rather to have been the impression of the Judge, that it should be so, but it was not decided as a point in the cause. It was a mere argument of the Judge, and is not entitled to the weight of a decision.

When an appeal is taken, a transcript goes to the Appellate Court; the original judgment remains in the Court below, and there can be no difficulty in regarding it as the foundation of a fien. I therefore repeat, that the first judgment exists as a lien from its rendition, deriving additional force from its ratification in the Appellate Court as an operative binding lien, together with the accumulation of the legal incidents or consequences of judgment for damages against the principal and his sureties, which are annexed to the original lien as penalty for délaying its operation. That it is neither satisfied, merged, or extinguished by the second judgment.

Another point was made in the cause, but not seriously relied on. The inclination of my mind is, that it is not tenable. I therefore think the decree of the Chancellor should be affirmed.

Mr. Justice TurneR

delivered the following opinion.

You cannot enforce the lien of a mortgagee without the decree or judgment of a Court of Justice, and the decree or judgment does not extinguish the lien, but provides the means of enforcing it. A vendor’s lien for purchase-money cannot be enforced, but by a judgment. The judgment does not extinguish the lien. And so of liens given in favor of creditors ¡^preference to purchasers, by the registry acts of the State.

It would seem to be unjust to deprive one of his lien, without his consent. Where a plaintiff having a judgment and a lien on defendant’s property, by virtue of his judgment sues out a fi. fa., and procures a levy on defendant’s property, it is the plaintiff’s own act; such levy is considered a satisfaction until exhausted, and a deficit is shown : the forthcoming bond is a statutory security, provided by the statute law ; and the only reason why such a bond, when forfeited, has been construed to satisfy or remove the lien of the first judgment, is because of the levy of the plaintiff’s execution on defendant’s goods.

In case of appeals and writs of error, the reason fails ; and Courts of Justice 'are ever inclined to favor and to sustain liens in favor of creditors. I have heretofore been inclined to a different opinion; but having investigated the subject with more care, I have come to the conclusion that the law is as stated in the opinion of the presiding Judge, and concur in that opinion.

Mr. Justice Clayton

delivered the following dissenting opinion.

The single question presented by the, record in this case is, whether, when a case is taken up by appeal to the High Court of Errors and Appeals, and the decree of the Court below is affirmed, and a decree is entered against all the obligors in the appeal bond; the lien of the original judgment is lost, or still continues. The answer depends upon the construction of the statutes of our State.

The clause of law, which has the most direct bearing on this subject, is the twentieth section of the. act relating to this Court-How. & Hutch. 535. This clause in substance enacts, that a a certified copy of the bond on all appeals shall be transmitted with the record, and in case the decree of the Court below shall be affirmed,-the Supreme Court shall enter up a decree against all the obligors in such bond, both principal and surety, for the debt, damages and costs, which may be adjudged to the appellee ; and it shall be the duty of the clerk of the Court below, on the certificate of the clerk of the Supreme Court, to issue execution thereon accordingly. This is a case from the Chancery Court ; for that reason only so much of the law is transcribed as relates to cases in that Court. But appeals and writs of error which operate as a supersedeas, are placed on the same footing by the statute, and there is no room for any distinction between them. , .

It is stated in argument, that by the English law, after affirmance, the record or a transcript is remitted by the Court below, from which Court the execution issues ; and that the judgment upon affirmance is revived, with every consequence attached to it which would have existed if no appeal had been interposed. It would be difficult to sustain this position, to the extent to which it is here laid down. If a judgment of the Court of Common Pleas be affirmed by the Court .of King’s Bench, execution issues from the latter Court; but if a judgment of the Court of King’s Bench be affirmed by the House of Lords, execution issues from the King’s Bench, upon a transcript which is remitted. 6 Com. Dig. tit. Pleader, p. 364 (3 B. 20) ; Cowp. 343. If a record is removed into the King’s Bench by a writ of error from a County Palatine, the Court of King’s Bench will award execution into any county in the kingdom, which could not have been issued in the Court below beyond the limits of the County Palatine. Com Dig. as above ; 3 T. R. 657. These authorities go at least to qualify and restrict the rule contended for, and to show that it is its own judgment which the Court of King’s Bench executes and enforces, and not that of the inferior Court. It will hardly be thought, that a Court can give an antecedent effect to its judgment, or make it operate as a lien from a period prior to its rendition.

In England it required two separate proceedings to attain the end which is here reached by one. When the judgment was simply affirmed, it could not embrace the bail in error ; if the money was not made by the execution under it, a new proceeding against the bail in error by scii'e facias or action of debt was instituted, and upon that judgment rendered against the principal and sureties a new execution issued. 2 Saundi 72, d. Upon the second judgment, there could be no pretence that there was a lien from the time of the original judgment.

In this State, these two proceedings are blended into one, and when the Appellate Court makes an order of affirmance, it likewise enters a judgment upon the appeal or writ of error bond, against all the obligors, as well the principals as the sureties. This judgment rendered in a summary way, takes the place of the judgment upon the scire facias in England, and is precisely equivalent to it. If upon the judgment rendered upon the scire facias, the lien of the original judgment could not be resorted to, it follows that the correspondent judgment rendered here can have no other consequence attached to it. The judgment here is a new one, and is treated as such in all the statutes upon the subject. The affirmance in this instance is nothing more than the finding of a fact, which warrants the1 Court in pronouncing the new judgment. Upon this the execution emanates, and if issued upon the old judgment, would on application be quashed. A lien, without any mode or remedy to enforce it, would be an anomaly ; and yet this is the fact in regard to the original judgment, if any lien exist, for surely no execution can ever issue upon it.

By our statutes, a final judgment is given in the Appellate Court, and given against new parties ; from that time a lien is created. It is contrary to all the analogies of the law, to say that the lien of the judgment of the. Court 'below likewise exists. In regard to a kindred subject, forthcoming bonds, this Court has heretofore correctly said, “that after forfeiture, the forthcoming bond, by operation of law, becomes a judgment; and as the law will not permit two judgments to exist at the same time against the same person for the same debt, this judgment, by operation of law, necessarily extinguishes the former.” Anderson v. Clark, 2 How. 852. This reasoning is decisive of the case before us.

After an appeal is prayed and granted, and bond given according to law, the Court below has no further jurisdiction of the cause. 1 Tenn. Rep. 2. A sale made under a judgment or decree, after an appeal or writ of error operating as a supersedeas, is absolutely void. Claiborn v. Crockett, 1 Meigs, 607. “ If Parliament omits to give such judgment as the Court below should have given, the Court below cannot afterwards give it, for by the first judgment the Court has executed its authority.” 6 Com. Dig. 464 ; 1 Salk. 403. This goes to prove that it is only the judgment of the Appellate Court which is enforced, whether the execution be issued from the one to the other.

In 5 Yerger, 98, it is holden, “ that in an appeal from a judgment upon scire facias, the judgment must be given against the principal and his surety in appeal, and not that he have execution of his judgment; for the reason that the judgment in the Court above is a new one.” 1 Lord Raymond, 10. An injunction forms an exception to this rule, for the lien of a judgment is ■ not affected by an injunction. This is because the injunction only operates on the person of the plaintiff at law, — not on the judgment the plaintiff is restrained from proceeding ; but the judgment itself is left in full force. Miller v. Estell, 8 Yerg. 452; Overton v. Perkins, Mar. & Yer. 367.

It is asked in argument, as if it presented an unanswerable objection, what is the course to be pursued upon an affirmance of the judgment, in a case in which there is a summons and severance of the parties ? How is execution to go as to those who have not joined in the writ of error ? Is it to be upon the judgment of the Circuit Court, and if so, must not the execution conform to the judgment and be against all the parties ? To this it may be replied, that whether the question of lien 'be decided one way or the other, the difficulty in regard to the execution is the same. By the writ of error, the power @'f the Circuit Court over the case is gone as to those who join in it; and upon the affirmance of the judgment, by the express terms of the statute, the execution is to issue upon the new judgment rendered in the High Court against the obligors in the writ of error bond. Beyond doubt execution cannot issue against those who are no parties to the judgment in the High Court, and it is equally clear that execution cannot issue upon the Circuit Court judgment, against those who are parties to the judgment in the High Court, because by the writ of error the Court below loses all jurisdiction over the parties to it. The consequence therefore follows, that by the summons and severance the judgment which was previously joint becomes severed, and that execution may issue from the Circuit Court, even pending the writ of error, against those who refuse to join in it. After the affirmance and new judgment, it issues against the rest, not upon the judgment of the Circuit Court, but upon that of the High Court. If principles so obvious need authority for their support, the case of Pucket v. Ainsworth, 1 Yerg. 254, will be found fully to sustain them.

From these considerations the conclusion follows, that the judgment rendered in the High Court is a new one ; that the execution issues upon that, and not upon the judgment of the Court below ; and that the lien has effect only from the date of the judgment in the Appellate Court.

The operation of a writ of error without supersedeas, is not considered in this opinion, being left for determination when the case shall arise.

Upon the delivery of the foregoing opinions, Judge Hughes applied in the following petition for a re-argument, which was granted.

To the Honorable, the Judges of the High Court of Errors and Appeals of the State of Mississippi.

In the case of the President, Directors and Company of the Planters Bank of the State of Mississippi against Sarah Calvit, Executrix, &c., on appeal from the Superior Court of Chancery, the undersigned, counsel for appeal, would most respectfully ask of the Court, that a re-argument be allowed. He will briefly state the grounds upon which his application is based.

A bill was filed in the Court below, by the now appellants, against the appellee, in which, in substance, amongst other matters, it is stated, that in June, 1835, a certain Peter C. Goosey was indebted to the complainants in about the sum of twenty-five thousand dollars, and to secure the payment thereof, executed his eight promissory notes, payable in one, two, three and four years, one half at the office of the plaintiffs-, in Natchez, and the other half at the office in Port Gibson ; and to secure the payment and protect his indorsers, Bogart & Hoopes, and others, by deed'in fee, conveyed to Passmore Hoopes, a member of the firm of Bogart & Hoopes, a tract of land in the deed mentioned and seventy-five negro slaves, in trust, &c., and by said deed, upon default, empowered said Passmore Hoopes to make sale and convey to the purchaser as in said deed provided. That the said notes being all due, and unpaid, on the third day of August, 1840, the said Passmore Hoopes, in pursuance of the directions of said deed, having given notice, proceeded to and did sell the land and negroes in the said deed mentioned, and complainants became the purchasers, for about the sum of twenty-two thousand dollars, and the said land and negroes, upon said sale and purchase, were delivered to said complainants by said Passmore Hoopes. See the bill and the exhibit, which shows that the property was delivered to complainants, and by them redelivered to Goosey as the agent of the bank, evidence of which is on the record in Yazoo ; and they expected to have the benefit of their purchase. But now the defendant, Sarah Calvit, by virtue of a decree in the Superior Court of Chancery, against William F. Markham, P. C. Goosey, and C. Dart, rendered in 1834, before the date of the deed of trust before set out (but from which there was an appeal to the Supreme Court, and a decree in said Court affirming the decree below, against principal and security, in 1839), had an execution issued to the sheriff of Yazoo county, which by said sheriff was levied on twenty-five of said negroes, and by virtue of said levy, said sheriff was about to sell said negroes, although as the said bill alleges, previous to the issuance of said execution, by virtue of which said sale was about to take place. The said defendant, Sarah Calvit, or some one for her, caused an execution upon said decree to issue to the sheriff of the county of Warren, against said William F. Markham, Peter C. Goosey, Christopher Dart, and Thomas M. Green, security, which execution came to the hands of said sheriff, and was by him levied on the property, both real and personal, belonging to said William F. Markham, to an amount greatly exceeding the amount due on said execution ; but the property so levied on w'as not sold by reason of injunction ; afterwards the said defendant, Mrs. Calvit, caused vendi-tioni exponas to issue for the sale of the property levied on, which came to the hands of the sheriff, and instead of having the property mentioned in said writ sold, the said defendant, Mrs. Calvit, or some one for her, received from the said William F. Markham one half of the amount due upon said execution, and then permitted the said William F. Markham to have control of so much of said execution ; and the said William F. Markham had the said property sold, and purchased in by his brother, at a great sacrifice, greatly below the cash value thereof, with the money advanced by him, when, had the law been pursued, the execution would have been satisfied; and the bill prays that said Mrs. Calvit be enjoined from selling upon the levy made upon said negroes, and for general relief.

It is not proposed by counsel who makes this application, to inquire into or combat the opinion of a majority of the Court upon the lien of the decree in the High Court. It is only proposed to examine a question which was made on the argument, and in the briefs, and which has not been decided by the Court. In the opinion of Chief Justice Sharkey, this question is alluded to in the last paragraph of the opinion, in these terms : “ Another point was made in the cause, but not seriously relied on ; the inclination of my mind is, that it is not tenable.” It may be that this point was so imperfectly argued and insisted upon by counsel, as to leave the impression that it was not seriously relied upon. If, however, this was so, it is far from the truth. The counsel has always relied upon, and now relies upon this point, as a most material question in the cause, and one too upon which he believes the law is with the appellant. The question alluded to, is that which arises out of the actings and doings of Mrs. Calvit, her agent or attorney, upon the venditioni ex-ponas, issued to Warren county, to sell the property of William F. Markham, which had been levied upon. And here it may be observed, that this question arises entirely on the allegations of the bill, for there is no answer, but the motion to dissolve the injunction in the Court below, was on the bill,° and whatever are the averments of the bill have to be taken as true. Those amounts have already been set out in the abstract already given, and will not be repeated.

By the execution which was sent to Warren county, sufficient property was levied on to satisfy it. The result of which was that as soon as the levy took place, the execution was considered satisfied, and the lien of the decree, by virtue of which said execution issued, was at an end. See Ex parte Lawrence, 4 Cow. 417; Young & Whitcomb v. Read, 3 Yerger, 297; Taylor v. Dundas, 1 Wash. R. 121; Cluk v. Wethers, 2 Ld. Raymond, R. 1072; Ladd v. Blount, 4 Mass. R. 403; Wood v. Torry, 6 Wendell, 562; Mickles v. Haskin, 11 Wendell, 126; Troup v. Wood, 4 John. Ch. R. 254 ; Hoyt v. Hudson, 12 John. Rep. 207.

From the time of the levy upon sufficient property, the estate now claimed by the complainants below, was complete in Goosey, the then owner, freed and discharged of the lien of Mrs. Calvit’s decree, unless by subsequent legal proceedings, or by a proper and legal sale, under a subsequent executor, it should be ascertained that the property was less in value than the amount of execution ; and the counsel of Mrs. Calvit insists that such proceedings took place, and by virtue thereof it was competent for her, Mrs. Calvit, to have execution, by virtue of the lien of the decree for the balance due on the execution against Goosey, notwithstanding the claim of the complainants below, who are purchasers of the estate attempted to be sold by the execution, for value. To this it is answered, that by act of Mrs. Calvit, or her agent, a release of the property seized under the execution took place ; she received one half of the money due on the execution, and then gave up her claim to make the balance of t'he money out of the property seized, and permitted it- to be sold under the execution, for the money which had been paid, at a great sacrifice, and purchased by the brother of Markham, that thereby the levy might be disposed of, so that property of Goosey might be reached ; for this must have been the only object. For the learned counsel who appear in this Court in this cause, was the counsel of Markham, and he well knew, that notwithstanding the payment of one half of the money on the execution, the levy was not discharged, and until it was discharged in some, mode, that another execution could not be issued, or, when issued, levied upon the property of Goosey subject to the lien of the deeree. In these proceedings consists the wrong complained of. In argument it was insisted, that Goosey was joint defendant, was bound for, and should be compelled to pay one half of the execution, and that he had no right to complain. It will be time enough to address Mr. Goosey in this language, when he is sought to be charged properly. The authority, of which there is a note in the brief of Mr. Yerger, points out the manner in which Mr. Goosey is to be reached. If Markham’s property bad all been sold under the execution, in order to compel contribution, he might have resorted to a courtj of equity, and to the amount that he paid over his proportion, he would have been substituted to the rights of Mrs. Calvit, and would have stood in her shoes as to execution, lien, and every thing else. See the cases referred to by Mr. Yerger, of Sells v. Hubbell, 2 John. Ch. R. 397, and Lawrence v. Cornell, 4 John. Ch. R. 545.

In this suit, however, the substitution would not have been declared until the equities between the parties had been examined, and notwithstanding Markham had paid more than one half of the execution, if upon taking an account it had been found that Goosey was not indebted to Markham, his bill would have been dismissed. But instead of pursuing this course to aid Markham, Mrs. Calvit, or those acting for her, by the course pursued, have placed themselves in the stead of a court of equity ; and taking it for granted that Goosey is bound to pay one half of the amount of the decree, are determined that he shall pay. But in pursuing this determination, it is presumed that the Court will hold them to the rules of law, notwithstanding what is said as to Mr. Goosey having no right to complain, being bound by the decree and execution upon it to pay one half. The reply is, that this obligation of Mr. Goosey is a matter with which Mrs. Calvit has nothing to do ; she had her execution, which was levied on the property of Markham, and she had no right to interpose to release the levy. In the case of Young & Whitcomb v. Read, 3 Yerger, 297, which has before been referred to, the Court, in delivering the opinion says, “it cannot be tolerated to let an officer exercise the discretion of abandoning at his pleasure the property he has seized ; nor can it be permitted that the plaintiff in the execution shall, by his order or assent, change the direction which the law affixes to penal process in the hands of her officer.” This language is clear and unequivocal, and is believed to be in accordance with principle, and is sustained by other authorities. Again, the opinion continues, “ when the plaintiff selects his mode, and gives direction to the instruments which the law affords as a mean of attaining his rights, they must be pursued to the end.” “ All the above rules have been departed from, without any apparent reason for it. The first execution, the forthcoming bond, the property seized, and the person primarily liable, have been abandoned, and alias sued out to another county, on which a new series-' of operations are commenced.” And so in this case ; the first execution, the property seized, which was previously liable, have been abandoned, and by a new execution to another county, a new series of operations are commenced, and that, as far as we can see, for no reason, but that thereby the equities between the parties may be enforced. When parties in pais are constituted judges and chancellors, to pass upon the rights and equities of others, it will be time for them to act. It has been said on this point, that the release or discharge of the levy on the property of Markham, being with his consent, another execution could issue against him ; and a fortiori, it must issue at the same time against Goosey, because the judgment is joint against both. It does not necessarily follow, that because execution may issue against one of two joint defendants in a judgment, that therefore it may issue against the other, or be enforced against him.

In the case of Taylor v. Dundas, 1 Wash. R. 121, referred to by Sharkey, G. J. in the case of McNutt v. Wilcox & Fearn, 3 How. 419, it is said, u A second fi. fa. cannot issue on the same judgment against several defendants, if, upon the first, a sufficiency of goods have been taken, no matter'to which of them they belonged.” But suppose one of the defendants, the defendant to whom the property belonged, consented that the levy might be discharged, — could another execution issue on the judgment ? It is admitted that it could, but not against those defendants who bad not agreed to the levy. Again, suppose another of the defendants, one of them who did not own the property levied upon, were to agree that the property levied on should be released, and the sheriff thereon were to release the levy, and instead of returning it to the defendant to whom it belonged, should waste, or destroy, or convert it to his own use, and all without the knowledge or consent of the plaintiff in the execution ? In such case it would, upon the same principle that it is contended for in this case, be insisted that another execution might be issued. And, because it was a joint judgment, it would have to be issued against all; as well he who consented to the release, as he whose property, without his consent, had been wasted and destroyed. This cannot be law, — instead of the rule being, as contended for, that, by reason of the consent given by one to the release of the levy, and the judgment being joint, the execution must issue against both, — it the rather is, that the release of the levy would be an absolute discharge as to both, but for the consent of one ; that consent, however, is binding on him ; but the other, who did not consent, is discharged. And this is upon the ground, that the liability is joint, and whatever discharges as to one, discharges as to both ; thus, it has been decided, that where capias and satisfaciendum issues against two, one is taken, and released with the consent of the plaintiff; the other cannot be taken, because, one being discharged on a joint liability, both are discharged. Bryan v. Simonton, 1 Hawks, R. 51, 52; Clark v. Clement, et al. 6 Term R. 526.

But it has been contended, that the complainants below have no right to say anything, or object to the proceedings of Markham and Calvit in this case ; that the creditors of Markham might complain, but not those of Goosey. In the cáse of Wood v. Torry, 6 Wendell, 562, which is before referred to; the Court say, It was the folly of the plaintiff in the execution to relinquish the satisfaction which was in his hands, and an innocent purchaser'should not be the sufferer.”

In that case, an execution had issued, and was levied on personal property, and afterwards lands, which were subject to the lien of the judgment, were sold to a purchaser. The plaintiff then abandoned his levy on the personal property, and sought to sell the land but the Court ordered a perpetual stay of the execution. This, it is true, was in a case where there was but one defendant in the execution, and the innocent purchaser bought from him; but suppose there had been two defendants, one of whom was possessed of land, subject to the lien of the judgment, and the property of the other had been levied on sufficient to satisfy the execution, then a sale by the possessor of the land to a purchaser for value, and then the levy on the personal property abandoned, andan attempt to sell the land, —■ would the purchaser have no right to interfere ? He would most clearly. Because, at the time of his purchase, by a levy upon the personal property of the defendant, the execution was satisfied, the lien of the judgment removed, and it was the folly of the plaintiff in the execution to relinquish the satisfaction which was in his hands, and an innocent purchaser should not be the sufferer.” The case of Young & Whitcomb v. Read, ante, was the case of judgment against two as principals, and one as security ; the execution was issued on three horses, sufficient in value to pay the debt; a forthcoming bond taken for the delivery of the property on the day of sale, but the property was not delivered. Another execution issued on this judgment, which was about being levied on the property of the security, when the security obtained supersedeas, and had the execution quashed; and the case was taken to the Supreme Court, where the decision of the Court below was affirmed. And note, this case was in Tennessee, where no such forthcoming bond law as that which we have is in force ; but when a forthcoming bond is given and forfeited, it is the duty of the sheriff to make the money out of the property of him who gave the bond, and his security, immediately. Now, if the counsel who argued this case, had been in Tennessee when the case of Young & Whitcomb v. Read was decided, he might, before the Court there, have argued with the same plausibility that he does here, that another execution might be issued and levied on the property of the defendant Read, because, although the execution had been levied upon the property of one of the defendants, sufficient to satisfy the execution, yet that property so levied upon, being surrendered to that defendant to whom it belonged, with his consent, another execution might issue, as well against the defendant whose property had been released, as the others, because tbe judgment was joint against all; but, notwithstanding such an argument, the Court, it is presumed, would have decided as they did, that another execution could not be issued or enforced ; and that, too, upon the application of one of the defendants, because that defendant had nothing to do with the return of the property levied on, and had an interest that the property of the defendant which was seized should be sold, and thereby save his property from being reached ; — as the complainants here had an interest that the property levied on should be sold bona fide, so that the property purchased from Goosey should be discharged from the lien of the decree.

It is admitted that a levy on property in value sufficient to pay an execution, is not an actual satisfaction or payment, but only a satisfaction in law. And that where property supposed to be of sufficient value, turns out not to be of the value supposed, or when by any act where the sheriff is not in default, or in which the plaintiff has not participated, the property cannot be had to sell, then a new execution may be enforced. Within this rule, however, the defendant, Mrs. Calvit, is not brought; and it is insisted that she had no right to levy on the property of the complainants purchased from Goosey. All which is respectfully submitted. Rob. Hughes,, for appellant. October 27, 1843.

We concur in the views set forth in the foregoing petition, and think a re-argument should be granted. O. B. Hubbard, C. R. Clifton, G. L. Potter. October 27, 1843.

A re-argument was granted on this petition; the question was again fully discussed, and

Mr. Justice Thacher

delivered the opinion of the Court.

This case has received an unusually careful examination by counsel, and profound reflection from the Court. With the advantages of access to the former laborious and learned investigations of my predecessor and associates, the difficulties in forming my opinion have been to a great extent removed.

The Constitution declares, that the High Court of Errors and Appeals shall have no jurisdiction but such as properly belongs to a court of errors and appeals. To a general, although not to a universal extent, it is therefore a revisionary tribunal only. Its judgment of affirmance is then no more than a ratification of what has already been correctly done. It is of no higher dignity than the judgment it affirms, because it is merely confirmatory of it ;'and it is no satisfaction nor extinguishment of it, because it is no payment, and adds to it no greater or more enlarged rights. Whatever rights, therefore, are acquired from the judgment below, are not altered by its affirmance.

The lien which by law a judgment gives is a vested legal right, which was perfect at the date of the judgment below. It can be lost only by the act or consent of its beneficiary. The affirmance is but a repetition of judgment, and the damages thereon constitute but a penalty for the vexation of delay. They are incidents to the appeal, but not parts of the original judgment.

> The above positions are elaborately argued and explained in the opinion of the Chief Justice in this case, and I therefore refrain from their further discussion'as unnecessary for conviction. They are to their whole extent, and in their conclusions, adopted by me.  