
    Assignees of Jacob Cohen vs. Assignees of J. M Grier.
    An execution loses its lien on the property of the defendant when his body is taken under a Ca. Sa. and if an assignment is made under the prison bounds act, the oldest fi. fa. 'thong!' it be junior to the execution under which the body is taken has the first lien.
    The other judgment creditors having issued out writs of fi. fa. before they had taken out writs of ca. sa. do not thereby retain their liens.
    It appeared in this case that Grier had been taken on several executions, (ca. sa’s.) at the instance of his elder execution creditors, who had first issued fi. fa’s, and then the ca. sa’s. under which he was taken. He had assigned over property pursuant to the provisions of the prison bounds act, for the purpose of satisfying these demands.
    The plaintiff now came in as having the oldest remaining fi. fa. and claimed the proceeds of the property assigned, or so much of it as would be sufficient to satisfy his execution; and the question was, whether the elder creditors by taking the body, lost their liens on the pro perty, so as to permit the next fi. fa. to come in and take a preference..
    Richardson, J. ordered the money to be paid over tc the oldest fi. fa. creditor in preference to the ca. sa. ere ditors.
    From this order the assignees of Grier appealed.
    
      
      John L. Wilson fox- the appellant,
    contended that Iiis' Honour mistook the clear expressions of the prison bounds act, and confounded the same with the insolvent debtors act. The prison bounds act makes the law for the distribution of the effects of the person taking the benefit of it, and the assignees cannot go contrary to that law. The pi-ison bounds act, protects prior incumbrances, and a discharge under that subjects the property to the conditions of that act. If the prison bounds act conflicts with the insolvent debtors act, or the common law, both are repealed pro tanto.
    
   Curia per

Nott, J.

In the case of Mairs and Smith, 3 M‘Cord, 54, it was decided that an assignment under the insolvent debtors act, did not effect liens which had already attached, but that the lien was lost by taking the body, and I cannot discover any distinction in the two cases. Indeed the claim of the fi. fa. creditor is stronger in this case, because the act expressly declares that the assignees shall take “ subject to all prior incumbrances,” and so soon as the body of the defendant was taken in execution and the elder liens destroyed, the fi. fa. next in order immediately attached and became an incumbrance on the property. Suppose the defendant had not surrendered his property at all, the fi. fa. creditors might have proceeded with their executions, and the surrender of the property by the defendant could not deprive them of that right. I am of opinion, therefore, that the judge below decided correctly in ordering the money to be paid over to the fi. fa. and the motion to reverse the decision must be refused. I entertain some doubt with regard to the correctness of this mode of proceeding, but as the party against whom it is taken has consented, I did not feel disposed to raise the objection myself. Motion refused.  