
    William Scott et al. v. James H. Dunn.
    Under section nine of the act regulating the mode of administering assignments in trust for the benefit of creditors, the priority of judgment liens is to be determined as the liens existed at the time the assignment took effect.
    
      Motion for leave to file a petition in error to reverse the judgment of the District Court of Drown county.
    Artus Pepper, on the 19th day of February, 1872, executed a deed of assignment in trust for the benefit of bis creditors. The deed was filed in the Probate Court, and the assignee duly accepted the trust and entered into an undertaking as required by law. Within the year next preceding the assignment several judgments had been recovered against the assignor, on all of which, except the judgment of James H. Dunn, executions had been issued and levied on the real estate included in the assignment. Dunn’s judgment was the oldest, and at the time of the' assignment was the prior lien. No execution was issued on this judgment, and at the time of the assignment a year had not elapsed from the time of its rendition.
    The real estate was sold under the assignment, by order of the Probate Court, and the controversy arising on the order of distribution is, whether, under section 447 of the code, the priority of lien of Dunn’s judgment was lost by the omission to cause an execution to be issued thereon and levied on the property assigned within the year next after the rendition of the judgment.
    The judgment of the Court of Common Pleas was reversed by the District Court, and the object of the present proceeding is to obtain the reversal of the judgment of the District Court.
    
      Loudon § Young, for the motion:
    Did the assignment of the judgment-debtor within a year from the date of Dunn’s judgment excuse Dunn from making a levy, in order to save his priority ?
    The general rule is that a failure to levy, within a year from the date of the judgment postpones the lien of the judgment not levied to the liens of junior judgments levied within 'a year from their date. 2 S. & C. 1080, see. 447; MeCormick v. Alexander, 2 Ohio, 65; Patton v.'Sheriff, 2 Ohio, 395; Wayman v. Staley et al., 3 Ohio, 366 ; Scrog-
      
      gins v. Atherton, 6 Ohio, 30; Corwin v. Benham, 2 Ohio St. 36Shuee et al. /, Ferguson et al., 3 Ohio, 139.
    To this rule the statute creating and regulating judgment liens makes some exceptions. 2 S. & 0. 1082, 1083, sec. 477.
    The case of mi assignment by the judgment-debtor is not one of thr jases coming within the exception to the general rule. Civil Code, sec. 447 (2 S. & C. 1082).
    Where a statute saves from its operation certain cases, courts vjh not add other eases to those so excepted.
    And as the legislature has, by express enactment, in section 447 of the civil code, excepted from its operation a number of cases, and has not included the case of an assignment, the legal presumption is that they did not intend to provide for it, or to save it from the operation of that section. Farnjit v. Winans, 3 Ohio, 136.
    Liens, for their validity and priority, depend upon the statute and the acts of creditors, and not upon the conduct of the debtor.
    And we insist that Dunn has no lien as against us for the want of a levy.
    
      John G. Marshall, contra :
    The judgment of Dunn, of the date of July 10, 1871, was a prior lien to all others, and was complete until J uly 10, 1872. The levy of Scott and the levy of Manker & Mockbee, in November, 1871, upon junior judgments, did not at the time interfere with Dunn’s vested lien.
    This being so, and the assignment of Pepper made in February, 1872, and before the lien of one year expired, could Dunn then have levied ? If he could, he must also appraise and sell, or rather the sheriff must have done so. 2 S. & C. 1068, 1073, secs. 423, 432, 433.
    This would be perfectly inconsistent with the assignment act of 1859. 56 Ohio L. 232.
    In answer to the claim of counsel for plaintiff in error, under section 447 of the code, we say :
    
      1. The assignment law was not in existence when section 447 of the code was enacted, and being subsequently passed, the two statutes must be construed together. In fact, the latter statute (the assignment act) will be construed as amendatory of the act of 1853 (Code, sec. 447). Lampkin v. Knapp, 20 Ohio St. 459.
    2. The law does not require a vain thing to be done; a levy can not exist without an order to appraise and sell. The property was in the custody of the law, and the legal title in the assignee, and any attempt to levy or sell would have been perfectly nugatory. Haskins v. Alcott Horton, 13 Ohio St. 215 ; 12 Ohio St. 595 ; Hoffman v. Maokall, 5 ■Ohio St. 133.
   By the Court.

Under section 9 of the act regulating the mode of administering assignments in trust for the benefit of creditors, the priority of judgment liens is to be determined as the liens existed at the time the assignment took effect (S. & S. 396). Hence the failure of the judgment creditor to sue out and levy execution on the property after the assignment, does not affect the priority of the judgment lien. Under the statute, the administration •of the trust created by the assignment, takes the place of process of execution for the enforcement of the judgments.

Leave refused.  