
    *Stephen Reeves vs. Isaac Johnson, Sheriff of Salem.
    A judgment operates as a lien upon the real estate of the defendant from the time of the actual entry of such judgment on the minutes or records of the court; and if an attachment be afterwards sued out against the defendant, by virtue of which his real estate is attached, the lien created by the judgment, is not thereby devested, nor is the sheriff prevented from selling the same upon a fieri fiadas subsequently issued on said judgment.
    An attachment has not the same binding force and effect as an execution.
    
      
      Richard S. Field, for Stephen Reeves,
    moved to amerce the sheriff of the county of Salem, upon the following state of the case, agreed upon by the counsel of the parties, to wit:
    ' Stephen Reeves, on the 16th day of September, A. D. 1828, in the inferior Court of Common Pleas, in and for the county of Salem, recovered a judgment in debt against one David String, for the sum of $208.79 of debt, and $52.92' for his costs, &c.; and which judgment was then removed by a writ of error, by the said David String, into the Supreme Court. Defendant filed bail in error, according to the statute, and stayed execution.
    David String having absconded, Israel R. Clawson, esq.,, took an attachment in case, against the property of the said defendant, out of the inferior Court of Common Pleas of the-county of' Salem, on the 3d March, 1830 ; which attachment-was duly executed, as the law directs, on the same day, and due return made thereto, and auditors appointed. At the-term of May, 1830, of this court, the judgment of the Court of Common Pleas, rendered September 16, 1828, aforesaid,, was affirmed, and a fieri facias de bonis et lerris, was issued, from this court, and placed in the hands of Isaac Johnson, esq., sheriff aforesaid, on the 30th day of May, 1830; who was ordered to levy upon the same lands and premises, heretofore attached and levied upon by virtue of the writ of' attachment aforesaid; the personal property having been absorbed by judgments and executions, prior to the attachment, but subsequent to the above judgments.
    The question then is, are not the said lands so as ,aforesaid attached by the said writ of attachment, so bound, thereby as to prevent the said sheriff from selling the same by virtue of the aforesaid fi. fa. subsequently placed in his hands, and subsequently levied upon the said attached lands . and premises ?
    It is admitted that due notice of amercement was given to the *sheriff; aiid also that he was forewarned not-to sell, by those interested therein.
    
      
      Alphonso L. Fahin, for the sheriff,
    opposed the application.
    The statute relating to attachments, after prescribing the manner in which a writ of attachment shall be had and obtained, and the manner in which the same shall be served, by the 6th see. Rev. Laws, 356, enacts: “ That the said writ of attachment shall bind the property and estate of the defendant, so as aforesaid attached, from the time of executing the same.” In this case, March 3d, 1830, and by the 21st section of the same act, the auditors appointed are authorized and directed to sell the said lands and tenements so attached, in eighteen calendar months from the time of executing the writ of attachment.
    It has already been decided by this court, that a writ of attachment issued prior to an execution, and served, had the preference, and the only doubt expressed by the court was, “ how it could have been made a question.” Penn. 734, Lummis v. Boon. And that after an attachment served, the property was in the custody of the law, ib. 736, 997, Austin v. Wade. And therefore not subject to any subsequent levies or executions; if so, it would render the attachment nugatory and void; if an execution issued and levied, nearly three mouths after an attachment served, should have the preference, the act would be a mere dead letter; and as there is no provision that the sheriff should pay the surplus, if any, to the auditors, the consequence would be, that the plaintiff in attachment, and • the applying creditors must lose their claims.
    
      Richard S. Field, for Stephen Reeves.
    .1 udgments bind lands from the time of the actual entry of such judgments upon the minutes or records of the court. Rev. Laws 432, sec. 2.
    The judgment then, of the Court of Common Pleas of the county of Salem, rendered in favor of Stephen Reeves, against David String, wms a lien upon the lands of the said David String, from the actual entry of such judgment; that is from the 16th day of September, 1828.
    
      But it is contended that no execution issued on this judgment until the 30th May, 1830; and that on the 3d March, preceding the delivery of the said execution to the sheriff, an attachment was taken out against the property of David String, and *duly executed; and the case of' Lummis v. Boon, 2 Penn. 734, is referred to, in which it was decided, that an attachment issued and served, prior to an execution, was entitled to the preference; but this is certainly not a case in "point; for there the judgment was subsequent to the attachment; here it was prior to it. It is true, the court say, in the case of The inhabitants of Northampton, &c., v. Woodward, et al., 2 South. 788, that the first executions delivered to the sheriff must prevail, although the subsequent execution be founded on a prior judgment, yet this opinion is founded on the language of the statute. Rev. Laws 432, which cannot be extended to attachments, but is confined entirely to executions. Besides, the reason assigned in that case is, that creditors pursuing their rights, are to be preferred according to their diligence, and when a plaintiff neglects to take out execution upon his judgment, it is perhaps right, that he should lose his priority, as against a creditor, who is guilty of no such neglect; but ■ where a writ of error was interposed, and operated as a stay of execution upon the judgment, and as soon as the writ of .error was determined, and the supersedeas removed, an execution issued. The plaintiff,' therefore, cannot be charged with any laches, but on the contrary, made use of all the diligence-in his power.
    The execution commands the sheriff to levy the debt and costs of the lands, tenements, hereditaments and real estate, whereof the said David String was seized, on the 16th day of September, 1828, in whose hands soever the same may be. The sheriff has neglected to do so, and is, therefore, liable to be amerced. Rev. Laws 241, see. 22.
    
      Eakin in reply.
    It is said, Rev. Laws 431, sec. 2, that “judgments bind the lands from the time’of actual entry,” &c., and by the 3d and 4th sections, the sheriff is ordered to endorse the day of the month and year, when he received the fi. fa., and if there are several executions, the first received shall have the priority, Penn. 190, Elmer v. Burgin. It is contended, then, this attachment, by the statute, Rev. Laws 356, has precisely the same binding force and effect as an execution, and is to be considered the same, as to its rights of priority and preference, as it answers the same purpose and effect of a fieri facias. In the case of Lummis v. Boon, the judgment was entered and *execution issued, after the attachment, yet the court fully recognize the binding force and lien of the attachment, to be as strong as a prior fi. fa. would have been; and in this case, it is admitted that, had the judgment of S. Beeves been subsequent to the attachment, it would be governed by the caso in Penn. 734 ; but inasmuch as the judgment was rendered in the Court of Common Pleas, previous to the issuing of the attachment, the fi,. fa. issued subsequently, it is said has the preference.
    It is very apparent, that the act before cited, places an attachment, to all intents and purposes, upon the same footing as an execution; in fact, the attachment is so binding in its nature, as to estop any subsequent levies, or incumbrances upon the property, which is said to be in custody of the law. Penn. 736, 997. It is insisted by the counsel in his argument, that the judgment binds the lands, Rev. Laws 431; grant it; but in case the attachment issued, had been an execution, he admits it must have had the preference; so must the attachment. In the case of Northampton v. Woodward, et al., the late. Chief Justice says, (2 South. 790) “ The first execution delivered to the sheriff, must prevail. The first judgment, indeed, ties up the hands of the debtor so that he can neither sell nor encumber the land.” Again, in the same case, speaking of'a judgment, “it shall bind the lands against all sales and incumbrances by the debtor himself, but not against creditors who have equal rights, and who gain a preference in due course of law, by placing their executions first in the hands of the sheriff.” Language, more plain and explicit, could not be used to shew what is meant by a judgment binding lands from the time of the actual entry of the same; it is merely such a lien as to prevent the debtor from either selling or incumbering the land, and not such a lien as to give a writ issued, on such prior judgment, subsequent to another writ, the preference over the same.
    There is no imputation of laches against the party. It may be true, they issued their fi. fa. the very moment the law permitted; yet this will not avail; several executions have issued on judgments, obtained against String, one of them on the very day the attachment was issued and served; yet we hear no claim of preference there; they, contend against a writ of the *same nature, because called an attachment, instead of a fi. fa. Bail in error has been filed, considered ample and sufficient at the time, and the party can claim a dividend of the estate of the defendant in attachment, along with the other creditors, or may resort to the bail in error; and they in turn may resort to the estate of the defendant in attachment.
    The sheriff, therefore, having considered the property formerly attached by him, to be in custody of the law, and not amenable to subsequent process and levies, ought not to be amerced, according to the statute, Rev. Laws 241, see. 22. The said property is not any longer the property of the defendant, D. String; and he would be considered a trespasser, if he took or meddled with such property. 1 Ch. Pl. 170 ; Bac. Ab. Tresp. E. 2, C. 1; 2 Saund. on P. and E. 791; Tidd’s Pr. 921; 4 T. R. 633, 648; 7 T. R. 177.
   The Chief Justice

delivered the opinion of the court.

A judgment shall bind lands, tenements, hereditaments or real estate, from the time of the actual entry of such judgment on the minutes or records of the court. Rev. Laws 431, sec. 2. An attachment shall bind the property and estate attached, from the time of executing the same. Rev. Laws 356, sec. 6. In each case and by almost the same words, a lien is formed. According to general principles, a lien, when fixed, remains, until legally removed. It is not defeated or weakened, nor are the legal measures, to enforce or satisfy or discharge it, precluded or frustrated by the occurrence of a subsequent lien. In some cases, however, by legislative provision, the general and common law rule in respect to the efficacy and priority of liens, has been changed, or more correctly speaking, an exception has been made to it, so that legal measures to enforce a subsequent lien may give it priority over an antecedent lien unattended by such legal measures. Thus by the fourth section of the act making lands liable to be sold for the payment of debts, among several judgments, that on which execution is first delivered to the sheriff, becomes entitled to priority and preference, and to be first satisfied from the lands of the defendant, although there may be older judgments on which executions had not been delivered or had been subsequently delivered to the sheriff. But *without this special provision, and by the operation of the general doctrine of lien, the older judgment would be entitled to be first satisfied although the execution upon it might be delivered to the sheriff subsequent to the delivery of an execution upon a younger judgment. If there are several mortgages on the same real estate, the proceedings upon a junior mortgage will not prejudice the older. If a judgment be obtained and execution levied on real estate, on which a previous mortgage exists, a sale under such execution does not remove that lien. This well settled doctrine will resolve the question proposed by the parties, in the state of the case they have agreed upon and submitted to us, on the present application for amercement. The judgment and attachment are both, as already shewn, liens. The former is the eldest. B\it as between them, there is no provision in any act of the legislature which can give to the latter a prevalent force over the former, as the fourth section just now cited, gives to the earliest execution. ■ The proceedings on the attachment are subject to the previous subsisting lien; aqd measures seasonably taken to enforce the judgment may be followed out notwithstanding the attachment. If a mortgage had been placed on the real estate attached in the present instance, it is presumed no one would insist that the subsequent attachment should be preferred. Why then should it be preferred to the judgment ?

The reasoning of the sheriff’s counsel is wholly founded' on the position he has assumed, that the attachment “ has precisely the same binding force and effect as an execution,, and is to be considered the' same as to its rights of priority and preference.” Now if this position were correct, the conclusion he has deduced from it would legitimately follow.: But this position, the premises of the argument, is assumed without proof, and is not susceptible of proof. The attachment, as we have seen, has binding force and effect; so has-the judgment. But there is no statute which gives to the attachment the binding force and effect of an execution, or. like the fourth section, gives it a preference over a previous-judgment, on which an execution has not been delivered, at the service of the attachment.

The counsel of the sheriff says, “it has already been decided *by this court that a writ of attachment, issued prior to an execution and served, has the preference;”’ and he cites Lummis v. Boon, Penn. 754. But in that-case the judgment, on which the execution issued, was not obtained until alter the service of the attachment. Consequently the lien of the judgment was subsequent to the attachment, and therefore had no better, nor" indeed any other pretensions to preference than the attachment here has.

Some reliance was placed, at the argument, on the expression in Lummis v. Boon, and in Austin v. Wade, that property attached is in the custody of the law. But although it he so, it is subject to all previous liens and to legal measures to enforce such liens, even though the attachment should in the language of the counsel thereby become “ nugatory and void.” In affording the remedy by attachment, the legislature did not design to intermeddle with or destroy existing rights.

The counsel of the sheriff suggested that Reeves might resort to the bail in error, which are ample and sufficient. But if he is entitled to the benefit of his execution, we ought not to compel him to resort to a more difficult and hazardous remedy ; and especially as we might thereby do injustice to the bail, if obliged to pay the money and left to the very doubtful resource pointed out for them, the estate of the defendant in attachment. »

It was farther suggested that “ the sheriff, having considered the property attached, to he in the custody of the law, and not amenable to subsequent process, ought not to be amerced.” We are precluded from considering whether the sheriff in this respect, is an exception to the maxim,” “ ignorantia legis neminem ex&usat,” by the agreement of the parties who have thought proper to make the amercement depend on a different question specifically proposed in the state of the case.

We are of opinion that the lands attached, were not so bound by the writ of attachment as to prevent the sheriff from selling the same by virtue of the fieri facias. Therefore, according to the agreement of the parties,

Let the sheriff be amerced.  