
    Tucker against Charles Lowndes.
    Every jutig-fo^the^rfioie ^tEnding fteinstalment says, that debts shall only be re-i’nstelmenS.
    This act does not niter the common lav.' or statute of frauds, in that respect; consequently those judgments mutt be paidc>fFby the sheriff in rotation, agreeable to their seniority.
    
      It is too late,, after judgment for defendant, to take advantage of want of demand of security. It ought to have been pleaded to the action.
    UPON a rule for the sheriff to bring money into Court, in order to discharge the instalments due on a judgment in this case. It appeared by a list from the prothonotary’s of-See, that this was the ninth judgment against the defendant, It was uro-ed., at the same rime, that most of the prior ones were unsettled»
    Holmes, for the rule,
    argued, that the prior judgments only bound for the instalments due at the time of the commencement of the different actions, as no notice of demand of security agreeable to the instalment act, was proved: and that some of the acrions were commenced against the defendant, when only one or two instalments were due. That this, of course, would leave money enough in the sheriff’s hands to pay his client (although his judgment was the ninth in order) the instalments due on his judgment.
    
      Rutledge and Ford, against the rule,
    insisted that every judgment bound agreeable to its priority, for the whole amount of the plaintiff’s demand, both at common law and by the statute of frauds. That the instalment law did not lessen the plaintiff’s security, or deprive him of his prior right. It only gave time to the defendant to raise the money, and prevented the plaintiff from recovering, (i. e. levying) otherwise than by instalments. They compared it to a bond given with a penalty, to pay money at different days; where, upon failure of payment, on any of the days, the penalty became forfeited, and judgment on that, bound for the whole amount; though the plaintiff could not levy for more than the sums really due, until the- whole became payable. That to give any other construction to the instalment law, would greatly diminish the securities of the country, and set afloat a great part, if not the whole of the judgments entered up since that law passed. With respect to the demand of security., that advantage was waived by the defendant’s not pleading it in bar to the action. It was too late, after judgment, to make that a plea for not paying the money, or setting aside a judgment obtained without such demand.
   By the Court

unanimously.

Every judgment binds for-the whole amount in order, agreeably to seniority. The instalment law does not alter the common law or statute of frauds, in this respect — -though the defendant may, at any stage before judgment entered up, come in and pay the in-stalments due, and give security for the residue, and by that means discharge the suit. It is the duty of the sheriff, in every case where an execution comes to his hands, to sell as much of the defendant’s effects as would pay off the instalments due to the plaintiff in cash, and as much more on.a credit, agreeable to the instalment law, as would fully satisfy the plaintiff’s judgment, and deliver over to him such bonds, with security, as he may take for the credit of the judgment; and so on, in like manner, to every subsequent creditor, agreeable to seniority.

With regard to the demand of security — although the want of it might be pleaded in bar to the action ; yet this advantage has been waived by the defendant. It is too late, after verdict and judgment, to make it an objection. Lucas Ca. 431. 440. Ibid. 38.

Rule discharged.

Present, Rutlesge, Ch. J. and Judges Burke, Grimke, and Bay.  