
    The Planters’ Bank of Tennessee vs. Thomas C. Black et al.
    Under the act of the legislature, approved 24th of February 1844, the thirteenth section of which enacts, that no judgment heretofore rendered, shall operate as a lien on the property of the defendant or defendants, for a longer time than two years from the passage of the act, all judgments rendered prior to that period will, at the expiration of the two years therefrom, cease to be liens.
    It is the province of the legislature to enact laws; of the courts to expound or interpret them; a legislative construction therefore of a lien, is of no obligation.
    Whether the act of February 19th, 1846, entitled an act to settle the construction of the thirteenth section of an act, entitled an act to amend the several acts of limitation, approved February 24th, 1844, which provides “that the thirteenth section of the above entitled act shall not be so construed, as to affect the right, or impair the lien of any judgment, where the plaintiff therein, or other person interested, has been prevented from levying his execution, by reason of a preceding levy under, and by virtue of an execution emanating on, a junior judgment; and when the officer, thus levying such junior execution, fails, refuses, or neglects to sell the property thus levied on, on or before the 24th of February instant,” be a mere legislative construction, or the enactment of an exception to the general terms of the statute, — qumre. If the latter, the exception would be as operative as if embodied in the first statute.
    Where a claimant’s bond has been given for the trial of the right of property levied on under execution, if the levy be sustained, the original execution is satisfied to the extent of the value of the property levied on, and from that time, it becomes a matter entirely between the plaintiff in the execution, and the claimant, the original execution is to be credited by the value of the property, and the levy is discharged.
    Where an execution was levied on slaves, and a third party claimed them, but by an agreement between the plaintiff in execution and the claimant, the execution of a bond by the claimant was dispensed with, and the negroes left in the hands of the marshal; it was held, that a levy upon them while thus in the hands of the marshal, by a sheriff, would create no conflict of jurisdiction; the marshal would hold the slaves, not as an officer, but as the agent of the parties.
    When a judgment, on the trial of the right of property, has been rendered against the claimant, the process that issues to enforce the judgment, issues against the claimant, and if a distringas, its object is to compel a delivery of the property to the marshal, and it confers no authority to sell, unless by special order of the court.
    By the thirteenth section of the limitation law of 1844, the lien of judgments rendered prior to its passage is limited to two years. By the eleventh section of the enrolment law, passed on the same day of the same year, the lien of such judgment is continued for five years; but the former being recognized by the act of 1846, of February 19th, as existing and in force, will prevail over the latter. ,
    On appeal from the' superior court of chancery; Hon. Stephen Cooke, chancellor.
    The Planters’ Bank of Tennessee, Matthew Watson, and Nicholas Hobson, allege in their bill that on the 14th day of May, 1842, Watson recovered a judgment against James Morton, for $19,26S-22, and Hobson on the same day a like judgment for $7,297-96, in the circuit court of the United States, for the southern district of Mississippi; that these judgments were in fact the property of the bank; that executions issued on these judgments were levied on certain slaves as the property of Morton; that Thomas C. Black, the son-in-law of Morton, claimed them as his; the ordinary claimant’s bond was, by agreement of Black and the plaintiffs in the execution, dispensed with, and they further agreed that the slaves should remain in the hands of the marshal, until the issue to try the right thereto should be determined; that the trial of the issue was had at the November term, 1845, of the circuit court of the United States, and resulted against the claimant; and on the 8th of November, 1845, an ordinary judgment in detinue was rendered against him ; and on the 20th of November a writ of distringas issued, directing the marshal to seize and sell the slaves; the marshal accordingly seized and sold the slaves on the 10th of March, 1846, when they were purchased by Watson and Hobson, in trust for the bank.
    That on the 31st of May, 1839, Jeremiah Walker obtained judgment against Morton in the circuit court of Yazoo county, for $9656-44; on the 13th of May 1842, the Commercial Bank of Manchester recovered a like judgment in the same court for the sum of $2,396-64; also, on the 9th of May, 1842, another judgment for $2,547-05; on the 2d of December, 1842, another judgment for $5,599-06; also, various other judgments enumerated in the bill, all rendered in the year 1842, executions on all of which judgments were levied .by the sherilf of Yazoo county on the said slaves on the same day on which they were purchased by Watson and Hobson.
    The bill proceeds to allege that all these judgments were paid, but kept alive for fraudulent purposes; it is not, however, deemed necessary to set out this portion of the bill; it insists that even if these judgments were not paid, the sale of the slaves under the distringas invested the title in the complainants, freed from their lien; it prays for perpetual injunction against these executions, and that they may be decreed to be no lien upon the slaves.
    From the exhibits to the bill it appears that the executions in favor of Watson and Hobson, issued on the 8 th of July, 1842, and were levied on the slaves in controversy on the 4th of November, 1842. The executions were returnedsold, for want of time. On the 20th of December, 1842, a venditioni exponas issued, on which the marshal made the following return:-“No sale, by consent of all parties; negroes left in the hands of T. C. Black, Esq. deputy marshal, for safe keeping, until right of property is tried.” The following is the agreement of counsel in relation to the trial of the right of property : “ It is agreed by the counsel of both parties, that the following slaves, to wit, (enumerating those in controversy,) levied on by virtue of an execution id favor of Nicholas Hobson against James Morton, shall remain in the hands of the marshal, until an issue to try the right thereto shall be determined; said trial to take place under the following terms, to wit: The ordinary bond required in such cases is dispensed with, and said Hobson to sustain the levy, and his right to sell said negro slaves, is to rely on such proof as would be legally competent in an ordinary case to try the right to property, and Thomas C. Black, who claims to be the owner of said negro slaves, is to be allowed to use all legal and competent proof to sustain his claim thereto, and such issue is hereby accordingly made up.
    Wilkinson & Miles, for Black.
    TaRplev, for Hobson.”
    A similar agreement was entered into in the case of Matthew Watson; an injunction issued as prayed for.
    The different defendants appeared and answered the bill, admitting the judgments and proceedings under them of the complainants as alleged in this bill, but they deny the payment of the executions in their favor, and insist upon their right of priority. Other matters are set up in the answer in relation to the liens of the different judgments of the defendants, which, under the decision of the court, need not be farther noticed.
    The chancellor dissolved the injunction, ánd the complainants prosecuted this appeal.
    
      George S. Yerger, for appellants, insisted,
    1. That the judgments of the defendants required to be enrolled, not having been enrolled, so far as it appears in the case. The original lien of the judgments was lost, and complainants’ levy and sale was good. It does not appear that our judgment was enrolled, but in cases where neither judgment is enrolled, the one first levied is preferred. Gresham, v. Roberts, 3 S. & M. 471.
    
      2. The lien of the defendants’ judgments is barred by the act of 1844, sec. 13. Where the lien of a judgment is barred, the judgment itself is good, but the property sold under it only passes from the levy of the execution, or perhaps from the delivery into the hands of the sheriff.
    3. The act of 1846, p. 169, if constitutional, only applies to cases where the previous judgments could not be levied. In this case, after the claim of property and issue to try the right were made, the levy was removed, or at all events after the trial and verdict, as in detinue, 4 S. & M. 118; 8 Ibid. 197, 491. After the levy, the marshal held not as marshal, but merely as agent. After the agreement by which he was constituted the agent of the parties, he only held, and could only hold as agent, and not as marshal. Mickles v. Hart, 1 Denio, 548; 4 How. S. C. U. S. 1; 7 Alabama, 53; 6 Cowen, 461; 7 Ibid. 746.
    4. The case in 10 Peters, 402, was an appeal from Alabama. The statute of that state differs, from ours. There after bond given, the property remains in the hands of the marshal; here the execution of the bond discharges the levy, and the trial progresses as in' detinue. See cases cited above, and 6 How. 382; 1 S. & M. 372.
    5. It is said the 11th section of the enrolment act makes the limitation five years; these two laws must be so construed, that both remain in force if it can be done. The eleventh section of the enrolment law may be confined to judgments subsequently rendered; the 13th section of the limitation law, to those rendered previously.
    
      Charles Scott, on same side,
    In addition to the points made by Mr. Yerger, contended, that the act of 1846 was unconstitutional; that the construction of a statute is the exercise of the judicial power; and that the legislature, although it has aright to establish a law, cannot declare what it is, expound, or interpret it. Act, 1846, p. 159 ; 3 Story, Com. on Const, note 429, 432; 1 Kent, 448, 461, 464.
    
      W. R. Miles, for appellees.
    1. The Walker judgment was suspended by supersedeas in in this court, at the time the marshal made his levy under the Watson and Hobson executions. In 1843 that supersedeas was cut loose, but the marshal having made his levy, the sheriff was bound to wait its disposal before he could levy the Walker execution. Hagan v. Lucas, 10 Peters, R. 400. For the same reason the Bank of Manchester executions could not be levied by the sheriff, after the marshal had made his levy.
    2. But the 13th section of the act of limitations of 1844, will doubtless be urged as a bar to the rights of plaintiffs in the executions now levied.
    I believe said 13th section to be wholly void and inoperative. It will be seen that it makes five years’ difference in the liens of judgments recovered before and after its passage. Acts of 1844, 107, 108. Liniiting the first to two, and giving to the .second seven years. At the same session and on the same day the “enrolment act” was passed; the author of which undertook to remodel and reconstruct the entire system of judgment liens, and to place the questions thence arising on new and unmistakable ground. By the 11th section of this act it is declared, that every judgment plaintiff who enrolls his judgment, shall have five years within which to enforce his judgment. Acts of 1844, 100. The 13th section of the act of limitations gives to one set of plaintiffs two years, and to another set seven years. But both of these acts, strangely inconsistent as they are, were passed by the legislature at the same session and on the same day, (24th Feb. 1844); this court must therefore determine from, the contract, and from the policy of the legislature manifested by the two entire laws, which shall stand, and which shall fall.
    3. The 13th section of the act of limitations cannot be plead against appellees who delayed the assertion of their rights, not from choice, but compulsion. It has been repeatedly held, that a suspension brought about by legal proceedings, does not destroy any right of the party delayed. 4 How. Miss. R. 178, 185; 3 S. & M. 143, 199, 200, 213; 2 S. & M. 435, 436.
    It has been held by this court, that the statute of limitations does not bar the demand of a person, who by law is prevented from the assertion of his rights. 2 S. & M. 452, 455, 456, The same principle has been announced by Judge Story. 4 Mason, R. 16.
    The same doctrine is elaborated by Angelí on Limitations, from page 55 to 61, (new edition,) and the principle now contended for established by the author, not only on the basis of sound reason, but by the weight of numerous adjudged cases. See also Abbott v. Me Elroy, 10 S. & M. 100.
    4. Aside from the second and third positions, the merits of the controversy may be made to fall back on the first points by a legislative enactment of 1846., The legislature seeing the manifest injustice that might result from the act of limitations of 1844, provided that in all cases where senior judgment creditors were prevented from the assertion of their rights by reason of pre-existing levies, the 13th section of the act of 1844 should not be so construed as to alter, impair, or abridge their rights. Acts of 1846, 159.
   Mr. Justice Clayton

delivered the opinion of the court.

This is a case involving the title to a number of slaves, and the question turns upon priority of lien.

The complainant, the Planters’ Bank of Tennessee, recovered a judgment in the circuit court of the United States at Jackson on the 14th May, 1842, against James Morton, and in the ensuing fall caused execution to be levied upon the slaves in dispute. Thomas C. Black had purchased the property from Morton, interposed his claim to it, and an issue was made up to try the right of property under the statute. In point of fact, no bond and surety were given by the claimant, but the giving of the bond was dispensed with by the plaintiffs in the execution, and the slaves by agreement left in the custody of the marshal. The issue was determined in favor of the bank on the 8th Nov., 1845, and the judgment of the court, rendered upon the finding of the jury, was that usually entered in an action of detinue, that the plaintiffs in execution recover of T. Black all the above named slaves, &c. A writ of distringas issued by virtue of this judgment, on the 26th of November, 1845, and the slaves were sold under it in March, 1846, and were purchased by the complainants, the present appellants. Immediately after this sale, the slaves were seized by the sheriff of Yazoo county, by virtue of executions in his hands, under judgments against Morton in the circuit court of Yazoo, of older date than the judgment under which the complainant claims. This bill was filed to enjoin the sale by the sheriff.

To avoid the effect of this levy and of the older judgment liens, the complainant relies on the 13th section of the act passed “ to amend the several acts of limitations,” approved 24th February, 1844, which enacts, “ that no judgment hereafter rendered in this state shall be a lien on the property of the defendant or defendants, for a longer time than seven years; nor shall any judgment heretofore rendered, operate as a lien on the property of the defendant or defendants, for a longer time than two years from the passage of this act.”

To obviate the force of this statute, the defendants rely on an act approved 19th February, 1846, entitled an act to settle the construction of the 13th section of an act entitled an act to amend the several acts of limitations, approved February 24th, 1844. This statute directs, that the 13th section of the above cited act shall not be so construed, as to affect the right or impair the lien of any judgment where the plaintiff therein, or other person interested, has been prevented from levying his execution by reason of a preceding levy, under and by virtue of an execution emanating on a junior judgment; and when the officer thus levying such junior execution fails, refuses or neglects to sell the property thus levied on, on or before the 24th February instant, provided said judgment has been enrolled according to existing laws.”

It is insisted in argument that this law is unconstitutional. The right of the legislature to repeal, alter or modify a law, is not questioned ; but it is urged, that, upon its face, this is a legislative construction of a previous statute, and that the right to construe laws belongs to’ the judicial department of the government. Nothing is more clear than that it is beyond the scope of legislative authority, to put a construction upon its laws which can be obligatory upon the courts. The province of the legislature is to enact laws, that of the court to expound or interpret them. If then this be merely a legislative construction of the law, it is of no obligation; but if it be in reality a substantive enactment of a distinct provision, which operates an exception to the general terms of the statute#., then, as such exception might have been made in the first instance, so it may equally be made, at any time before, the defence under the statute has attached.

But there is another point in this cause, which renders a decision of this question unnecessary. -Assuming the act of 1846 to be valid, does this case come, within it? If there was any time previous to the act of 1846, when the executions might have been levied, then the act does not apply.

The statute regulating the trial of the right of property in substance enacts, that if the issue*be found in favor of the plaintiff in the execution, it shall be the duty of the court to pronounce such judgment, as would be pronounced in an action of detinue, for the specific property, if to be had, and if not, for its value as assessed by the jury, and execution shall issue accordingly; and in all cases the assessment made by the jury of the value of the property, shall determine the amount of credit to be given, on the execution originally levied on said property. Hutch. Code, 913.

The effect of this law is to satisfy the original execution by the levy, to the extent of the value of the property, provided the levy be sustained; and from that time, it becomes a matter entirely between the plaintiff in the execution and the claimant. The'statute requires the property to be delivered to the claimant. On the determination of the issue against him, the original execution is to be credited by the value of the property; the levy is discharged, and the plaintiff looks to the property in the hands of the claimant, or to the bond' which he executed. It hence follows that, after the determination of this issue, there was no legal impediment to the levy of the executions of the defendants in this cause. There was then no subsisting levy of the marshal upon the slaves; they were in intendment of law in the possession of the claimant, not in the custody of the law. If they were really in possession of the marshal, under the agreement of the parties, they were held by him as their agent, not in his official capacity. In this situation a levy upon them by the sheriff, would have created no conflict of jurisdiction. This was certainly the case until the distringas issued, and until the marshal took possession under it. It did not issue until seventeen days after the trial, and it does not appear when possession was taken under it.

The true object of this writ was to compel a delivery of the property to the marshal, and it confers no authority to sell, unless by special order of the court. Tidd’s Prac. 110; Hutch. Code, 904, § 45. It was process against the claimant, not against the original defendant. The marshal was not required by the law to sell the slaves under the original judgment. The value assessed by the jury was to be indorsed as a credit upon the execution without sale, and the law did not authorize any sale under it. He could not then be said, in the language of the statute, “ to have failed, or refused or neglected to sell the property so levied on,” because it had already been disposed of by law.

We therefore think the defendants were not prevented from levying their executions, by reason of a previous levy, during the whole two years; and that the officer having made the disposition required by law, did not within the meaning of the act- “ fail, or neglect, or refuse to sell the property levied on.” Consequently the defendants are not protected by the statute.

It is contended in argument in their behalf, that the 13th section of the law of 1844 is not in force, because it stands opposed to the 11th section of the dnrolment law, which makes the lien continue five years. Both of these laws were approved the same day, and it is said, the one giving the longer time should be enforced.

How this ought to be decided, if these two acts stood alone, we need not undertake to say. The act of 1846 recognizes the 13th section,'as one existing and in force. To this extent it must be considered valid, whether in its other terms it enacts a new provision, or merely furnishes a rule of construction. It has regarded the 13th section as in force, and it is not for us to say now that it was repealed by implication.

The decree dissolving the injunction is reversed, and the injunction made perpetual.

Decree reversed.  