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    The Northern Bank of Kentucky v. Matthias Roosa, Henry Rocket et al.
    Judgments are liens, without levy for one year, on permanent leaseholds, as upon other real estate.
    One judgment can not, by prior levy, obtain a preference over other judgments of the same term, levied within the year.
    Loring v. Melendy, reported in 11 Ohio, 355, explained.
    This is a writ of certiorari to the superior court of Cincinnati.
    *The record presents the following state of facts: Matthias Roosa, at the October term, 1842, of the superior court of Cincinnati, recovered a judgment against Telomachus B. Coffin, on which, before the end of that term, execution was issued and levied on the land of the defendant, held by lease, for the term of ninety-nine years, renewable forever. Henry Rockey, also, and C. G-. Springer and Lewis Whiteman recovered judgment against the same defendant, at the same term, on which executions were issued and levied on the same land, within the same time. The Northern Bank of Kentucky also recovered a judgment against the same defendant, at the same term, on which execution was issued and levied on the same property in June, 1843. The prop-, erty was sold under the execution of Roosa, and the proceeds of sale were brought into court for distribution among the several judgment creditors above named, after satisfying certain conceded prior liens.
    In behalf of Roosa, Rockey, and Springer and "Whiteman, it was contended that their executions, having been issued within the rendition-term of their judgments, the surplus proceeds, after satisfying prior liens, should bo appropriated to the satisfaction of their judgments pro rata, excluding that of the Northern Bank of Kentucky.
    On behalf of the Northern Bank it was urged that the lien of her judgment was originally.equal to those of the other judgment creditors of the same term ; that this lien was preserved for one year by the statute; that execution upon her judgment having been issued and levied within the year, she was entitled to a pro rata distribution of the proceeds of sale with the other judgment creditors.
    The court held that Roosa, Rockey, and Springer and White-man had, by priority of levy, obtained priority of lien, and ordered that the proceeds of sale should be distributed pro rata among them. This decision is assigned for error.
    *Chase & Ball, for plaintiff in error:
    When this case was reserved, it was intimated from the bench that the question decided in Loring v. Melendy, 11 Ohio, 355, whether lands held by perpetual lease are, under the law of Ohio, subject to lien, execution and sale, under judgments, as real estate, might be now reconsidered. If so, that question is to be first discussed ; for if land, held by perpetual lease, be not real estate, quoad judgments, in Ohio, then we concede, at once, that the first levy binds first, and the decision of the superior court, which postponed the judgment of the Northern Bank, to the others, was correct.
    It is technically true, at common law, that no estate for years, however protracted the term, although renewable to the end of time, rises above the condition of a chattel. The inconvenience of this classification has been much felt. The incongruity of this classification with the original and fundamental distinction between personalty and realty, has been often acknowledged. Lands and tenements, according to the books, are “things real,” such as are permanent, fixed, immovable, which can not be carried out of their places. Goods and chattels are things personal, such as are movable, and may attend the owner’s person wherever he thinks proper to go. 2' Black. Com. 149. It is very obvious that an estate for years does not fall within this description of personalty. The reason why it was originally classed with chattels is worth attending to. In the infancy of the common law, the possessors of land, under leases from the lords, were generally farmers or husbandmen, and were regarded, in those feudal times, as an inferior class, existing rather for the convenience of superiors than for their own welfare. They wero considered rather as bailiffs and servants, who were to receive, and account for the profits at a settled price, than as having any property of their own. “ And therefore they were not allowed to have a freehold estate, but their interest vested, after their deaths, in their executors, who were to make up the accounts of their testator with the lord and other creditors, *and were entitled to the stock on the farm.” 2 Black. Com. 149. Here, then, was the original reason for assigning to land held for years, a place among chattels. It suited the convenience of the lords — the landholders — who made the laws, that the estate should vest in the executor, as a chattel, and thus bo subject to the debts of the testator, and not in the heir, as realty, and thus escape that chai’ge. We sec, too, the characteristic difference between chattels and lands. The former went to the executor, the latter to the heir. When the estate for years became of greater importance, and the possessor of these estates grew in number and consideration, the rule in regard to them had become too firmly fixed to bo altered without legislative interposition. These estates continued to vest in the personal representatives of decedents, and to be ranked, in law, as inferior to freeholds.
    It is plain, however, that the reason of the law has long since ceased; and we apprehend that it would have been no stretch of judicial authority to have held, at the outset, in Ohio, that the reason for the distinction between lands held for terms of years, and lands held for life, or.in fee, having ceased, the dislinction itself had ceased also. The courts, however, did not so hold; and the legislature, feeling the practical inconvenience, and seeing the theoretical absurdity of the distinction, especially as it affected lands held by permanent leases, at a very early period began to abolish it, as to. such estates, by positive enactment.
    As early as 1809, land held by lease, for years, renewable forever, was placed in the same condition as real estate in general, as to descent, by express statute. 35 Ohio L. L. 304; Swan’s Stat. 289. This act abolished the original characteristic distinction between these estates and freeholds. In 1818, all estates, for terms exceeding three years, were required to be conveyed by the same formalities as freeholds. 2 Chase, 1040. This act abolished another difference between estates for years and freeholds at common law. And now, one would think, lands and tenements, held by permanent lease, the difference between them and other lands having *been abolished by law, would be subject to lien, execution and sale upon judgments under a statute embracing all lands and tenements, without any express legislation to that effect. Such legislation, however, is not wanting. In 1821, it was enacted, that lands held by permanent leases “shall, in cases of judgments had, and executions levied thereon, be considered as real estate,” “ and the officer levying the execution shall conform to” the laws regulating the sale of real estate taken on execution, Chase, 1185; Swan’s Stat. 289. This law, it seems to us, destroyed all distinction between permanent leaseholds and other lands, if any remained at the time of its enactment. It contains two operative clauses. The first declares that, quoad judgments and executions, permanent leaseholds shall be considered as real estate; the other requires officers levying executions to conform to the laws regulating sales of real estate on execution. The last clause was added out of abundant caution. The first made permanent leaseholds real estate,'to every intent and purpose, quoad judgments and executions. It. may be objected that tho legislature did not intend to subject permanent leaseholds to the lien of judgment. But what evidence^ is there that the legislature did not so intend?. None. What that they did? This — and it is conclusive — that they declare that permanent leaseholds shall, in all cases of judgments had, and executions levied thereon, be considered as real estate. If it had been intended to prevent judgments from operating as liens upon lands thus held, the clause would have been confined to cases of executions levied. Indeed) the first clause might have been omitted; the second would have been sufficient. Upon tho construction suggested, lands held by-permanent leasehold would not, as to judgments and executions, be considered as real estate at all. Tho officer levying would only bo acquired to appraise and soil them, in the same manner as real estate, Such a construction seems to be too forced — too inconsistent with tho legislative intent, apparent, not only from this, but other acts on record.
    *But the former decisions of this court may bo appealod to. Of these, it seems sufficient to say, that there has been no decision upon argument, declaring that a permanent leasehold estate in lands is a mere chattel under the laws of Ohio.
    It was, indeed, supposed by the reporter that the decision of tho case of Bisbee v. Hall, 3 Ohio, 465, involved the determination of this point. But tho reporter was, undoubtedly, in error. In that case, tho court held the sale of a permanent leasehold estate, under execution, without appraisement, valid ; from which circumstance the reporter inferred that the court regarded that estate as a chattel interest. But the act of 1821, requiring land, held by permanent lease, to be sold as real estate, was before the court, having been referred to by counsel in argument. 3 Ohio, 463. This act required the appraisement of permanent leaseholds, before sale on execution. The fact, then, that'the court held the sale valid, without evidence of appraisement, furnishes no evidence that the court regarded the land sold as a chattel. Such a sale of land, held in fee, was valid, and had been decided to be so, at the preceding term of the court, in the case of Allen's Lessee v. Parish, 3 Ohio, 187.
    It is true that in the case of Reynolds v. The Commissioners of Stark County, 5 Ohio, 204, tho court held a permanent leasehold estate to be personal property, vesting, upon the death of the owner, in his personal representatives, and, therefore, required the administrator to be made a party complainant to a bill, by heirs, to enforce the specific performance of a contract to make such a lease to the ancestor. But this seems to have been without argument of the point. And the court was clearly mistaken, for the statute of 1809 was then in force, and permanent leaseholds descended to the heir,-like other real estate.

      Such was the state of the law and the decisions at the time of the passage of the act in relation to permanent leasehold estates, in March, 1839. Swan’s Stat. 289. This act does not change the law as it then stood. It condenses and- re-enacts the provisions of section 5 of the act of 1809, and ^repeals it. It condenses, also, and re-enacts one of the provisions of the act of 1821, but does not repeal it. There has been, then, no material alteration in the law on this subject since 1821.
    Under the law of Ohio, estates for years, renewable forever, have not, nor have had, since 1821, a single characteristic of goods and chattels. They have not, in fact, a single characteristic of the old common estate for years, except that they may be granted to-commence in futuro. They are immovable; do not attend the person ; can not be defeated by an act of the grantor, as, for example, a common recovery; ai’e conveyed by the same formalities as freeholds ; are subject to the same public burdens ; descend to the heir ; can not be subjected to the debts of the deceased owner, except by the proceedings necessary to subject freeholds. To hold that the judgment and execution laws,-which declare that “the lands and tenements ” of the judgment debtor shall be bound for the satisfaction of the judgment from the first day of the rendition term, does not apply to lands and tenements held by perpetual lease, under these circumstances, would seem to savor something of the ludicrous, were there no legislative provisions on the subject. So to hold, notwithstanding an express enactment tbht permanent leaseholds “shall, in cases of judgments had, and executions levied thereon, be considered as real estate,” would be, it ueems to us, to defeat the plain intention of the legislature by unwarranted construction. ¥o can not doubt, therefore, that the decision in the ease of Loring v. Melendy, will be adhered to.
    Wo proceed, then, to the second question. Can ono or more judgment creditors, within the year after rendition, obtain, by prior levy, a preference over other judgments of the same term, not levied within ten days after the rendition term ?
    The language of the statutes, for many years, has manifested an intention on the part of the legislature to discriminate between ■property, the distribution of which, among judgments, would be determined by the equality or priority of levies, and property, the distribution of which would be determined by *the equality or priority of judgments. Chattels and lands out of the county, and other lands not levied on within a year after rendition, belong to the first class. Lands within the county, levied on within a year after rendition, constitute the second class. All executions on judgments of the same term, issued during the term, or within ten days after, or placed in the officer’s hands on the same day, are to share property of the first class pro rata. In all other cases, the execution first delivered to the officer, is to be first satisfied out of this description of property. On the other hand, executions on judgment, of the same term, levied within the year, divide pro rata the second description of property. In all other cases, the first judgment levied within-the year is to be first satisfied.
    That this is a correct as well as a clear and comprehensive arrangement of judgments and executions, and rights under them, seems to us evident upon a careful examination of the statutes and the decisions.
    In the case of M’Cormick v. Alexander, 2 Ohio, 71, decided in 1825, the question was whether a judgment rendered in July, 1821, and levied on land in January, 1822, was entitled to a sum of money made by sale of the land on execution in preference to a judgment rendered in March, 1821, and levied on the same land in November, 1822. Here was a question betweon a judgment levied within the year, and therefore entitled to a lien from the first day of the rendition term, and a judgment not levied within the year, and therefore entitled to a lien only from the date of levy. It was decided in favor of the judgment levied within the year, under section 17 of the judgment and execution law of 1824 ■ 2 Chase, 1301.
    The question thus decided was presented again under circumstances slightly varied, in the case of Patton v. The Sheriff of Pickaway, 2 Ohio, 296. In this case the fourth section of the act then in force, couched in precisely the same terms, except it does not- contain a proviso since introduced, as the section now in force, under which the question before the court arises, was considered. It was contended by counsel *that, under this section, the execution first delivered to the officer, except in the cases specified in it, must be first satisfied. It turned out that, under the view which the court took of the case, this position became unimportant. The facts are these: Patton had obtained two judgments against the same defondant, one in July, 1820, the other in April, 1821, on which executions were issued and levied in Juno, 1821; but in 1822, the appraisements arid levies under these judgments were set aside. Allen obtained judgment in April, 1821, and levied in 1821. Rone of the executions were sued out within the rendition term or ten days after. The court held that the setting-aside of the levies under Patton’s judgments defeated the executions levied, and placed the judgments in the same condition exactly as if no executions had over issued. Under thoso circumstances Allen’s execution took rank as the one first delivered to the officer, and also as the only one levied within the year, and, therefore, upon the rule contended for by Patton’s counsel, as well as upon the doctrine settled in the case of M'Cormick v. Alexander, 2 Ohio, 71, was entitled to proceeds of the land levied on. I repeat, therefore, that the determination of any question arising under the fourth section of the execution act was unnecessary; and the remarks of the court were not so carefully guarded as they probably would have been, had a different question, suggesting different considerations, been before them. These remarks, however, deserve much attention. The court admitted that, upon a literal construction of the section, the execution first delivered to the officer must be first satisfied, except in the eases specified, without regard to the liens of other judgments, but refused to give to the section this literal construction, on the ground that the intended effect of other sections, securing the liens of judgment, for certain periods, would be defeated by it. The court reviewed these other sections and said, “Taking these parts of the statute together, it is apparent that the judgment operates as a lien upon the lands and tenements of the debtor, and that this lien is secured to the creditor for the term of one year. "Within that time no individual can deprive him of it.”
    *The court say further, “If in giving a construction to section 4 of the statute, we were to pay no attention to the priority of judgments upon which executions were issued; if we were not to regard the description of property upon which such executions were levied, but wore to determine that unless the executions were issued within ten days after the term in which judgment was rendered, or, unless the executions were delivered to the officer on the same day, the first delivered should be first satisfied; all that is said in the statute on the subject of judgments operating as liens upon the lands and tenements of the debtor, would be rendered nugatory. Lands and tenements, as well as goods and chattels, as to any beneficial effect, would bo bound from the time they were seized in execution. Such could not have been the intention of the legislature.”
    The court proceeding to give a construction to the section ac cording to the presumed intention of the legislature, say: “ In this section they (the legislature) intended to provide for cases where there are two or more judgment creditors having equal rights, and where there is no priority of lien, as where the judgments are recovered in the same term; for cases where the judgment does not operate as a lien, but the property is bound only from the time when seized in execution, as goods and chattels, or land not sit. uated in the county where the judgment is recovered ; for casen where the creditor, in consequence of not having an execution levied within one year from the date of his judgment, has but the benefit of his lien so far that it shall not operate to the prejudice of any other bona fide judgment creditor.”
    It must be remembered that this interpretation of the presumed intent of the legislature was obiter only ; and, therefore, not considered so carefully nor expressed so clearly as it would otherwise have been. There is certainly no reason why a judgment lien equal to another judgment lien' should be defeated by the prior levy, within the year of an execution, the proper office of which is to preserve and enforce the other, not to add anything to its validity or effect within *the year. The court say expressly, and such, all agree, is the intended operation of the statute, that the “lien of every judgment is secured to the creditor for the term of one year,” within which time “ no individual can deprive him of it.” This is not so if he is obliged to levy within ten days after the rendition term, or be liable to be deprived of his lien by any judgment creditor of the term who may levy before him within that time, or at any subsequent time within the year, unless, perchance, he delivered his writ to the officer on the same day. Give this effect to the section, and the lien of one judgment may bo destroyed, and the statute, as to it, nullified by a prior levy of a judgment of an equal date, which, but for this construction, would have an equal lien for a year. No consideration requires this construction as to judgments having equal lions which does apply as forcibly to judgments having unequal liens. Nothing is said in the section about either description of judgments. It is by construction, a correct construction as we conceive, that the section is held not to apply to judgments of unequal liens; and the reason for this construction is, that to hold otherwise would impair the effect of the other sections of the statute creating liens, and preserving them for one year, at all events, and permanently if levies be made within tho year. It is necessary, for the same reason, to hold that the section has no application to judgments of equal liens; for a different construction would impair the effect of tho other sections of the statute, since these sections preserve the liens of all judgments for one year from rendition, without liability to prejudice from the acts of any individual, and consequently preserve the liens of judgments of the same term, equal to the end of the year. If the construction which protects equal liens be incorrect, the construction which protects unequal liens is incorrect also.
    But the construction which protects all liens, protecting priorities where priorities exist, and enforcing equality where liens are equal, is the true and correct one. No other is necessary; no other, in truth, will give complete effect to the law in all its parts. ^Section 4 declares that ail judgments of the same term, executions on which shall be issued and levied within the term, or ten days after, and all judgments, executions on which shall be delivered to the officer on the same day, shall be- equal; but in all other cases the execution first dolivored shall be first satisfied.
    Nothing was farther from the intention of' the legislature than to interfere at all with the operation of the sections creating and limiting liens of judgments. The intention was simply to determine the effect of executions where levies were necessary in order to obtain effectual liens. Such are executions to be levied on personalty; executions to be levied on lands out of the county; executions on judgments rendered more than a year previously. In these eases (unless the judgments are of the same term, and the executions have been issued within the term, or ten days thereafter, in which cases all executions aro to share pro rata tho property levied on) the execution first delivered is to be first satisfied. In fact, the proper office of the section is not to enable one of several judgment creditors, having equal liens, to obtain an advantage over the others; but to restrain one of several judgment creditors from obtaining an advantage, even as to property on which the first levy would be the first lion until the lapse of ten days after the rendition term, and also to restrain the officer from showing partiality, on receiving two executions on the same day, by first levying the execution of a favored creditor, in cases where a levy would give priority. This consideration is sufficient of itself to show that the section was not intended to (apply to liens created and limited as to their continuance and effect by the statute, for as to these no such restraint or regulation was necessary. In fact, the- construction we contend for harmonizes the whole statute; makes all its provisions consistent with each other; gives effect to all; impairs the effect of none. It seems to us, therefore, that it must bo the true construction. In fact, it is indicated as the correct one by several passages of the opinion we have quoted.
    *We are not aware of any case in which an attempt has been made to obtain, for one of several judgments of equal date, a superior lien over the others by a levy within the year. If there be no case in which such an attempt has been successfully made, it is a strong indication that the construction for which the defendants in error must contend is not the true one. "What, indeed, must be the effect of that construction ? It summons judgment creditors of the same term to a mere race of diligence to determine which shall secure the better lien by levy. If any have not levied within the ten days and others have, those who have not, although they may levy within the year, are excluded, by construction, from all benefit of their lien, and from all participation in the proceeds of the land levied on, if such proceeds aro only sufficient to pay the judgments first levied. A judgment of a former term reposes secure for a year without- execution; and is not disturbed although an execution on a subsequent judgment or on a prior judgment, on which execution was not issued for a year after rendition, may be first placed in the officer’s hands. All judgment creditors have a year in which to investigate the condition of the judgment debtor’s realty within the county, and to determine on what to levy, except the unfortunate judgment creditors of the same term. These must make haste to levy on lands within ten days' after the rendition term, in order to preserve that equality of lien which the law intended to seeuro to them for a year, so that no individual could deprive them of it. After the ten days have elapsed as to these creditors, the rule is, “first come, first served.” As to them, the sections which make judgment lions on lands, and continuo these liens for one year, are repealed by construction. Wo adopt the language of the court and say, “ such could not have been the intention of the legislature.”
    The only remaining inquiry is, whether the proviso, added to the section of the execution law in force (which, with the exception of the proviso, is in the same words with the section which we have been considering), prejudices the right of the plaintiffs in error, secure, as we conceive, under tho law as it would stand without the proviso?
    *This proviso is in these words — “provided that nothing herein contained shall be construed to affect any preferable lien, which one or more of the judgments, on which such execution issued, may have on the lands of the judgment creditor.” What was the jdainly intended effect of this proviso? Doubtless to save liens acquired and protected under the other sections of the act, from tho operation of this. The proviso Was unnecessary, for the court had already decided that such was the effect of those other sections, independently of any proviso. If, then, the proviso does not save all the, liens acquired under other sections, it certainly does not destroy any, by subjecting them to tho litoral operation af this. It may be alleged that the terms of the proviso do not embrace the lien of the plaintiffs in error; that their lien is not a preferable, but only an equal lien. This would seem to be a sorry specimen of “ sticking in the bark.” All these judgments were preferable liens over those of judgments of subsequent terms. Each had an undisturbablo lien for a year at least, which entitled it to a pro rata satisfaction, in preference to a complete satisfaction of any of the other judgments within the same time. But it is useless to waste words. The plain intent of tho proviso is to preserve all liens acquired under other sections; and even if the language used, taken according to tho letter, does not effect this intent, it certainly does not defeat it; and we think we have clearly shown that, without this proviso, such liens were safe for a year.
    The case of Riddle v. Bryan, 5 Ohio, 48, confirms this view. In that case, a judgment was obtained by confession at December term, 1819, and execution was issued, and levied within ton days after its closo. Another judgment was obtained in regular course at the same term, but not levied until the next August. According to the law then in force, tho judgment by confession, was a lien only from the day of actual rendition : the other judgment was a lien from tho first day of tho term. Tho court held that tho language of the fourth section of the execution law, which, taken literally, gives a preference to judgments levied within tho ten days, over judgments ^levied at a later .period, must yield to the sections providing for the liens of all judgments. We submit that this decision can not be vindicated, any more than tho decision in the case of Patton v. tho Sheriff, upon any principio which will not save equal liens, as much as unequal liens. The letter of section 4, before the proviso was added, annihilated all; the natural sense of tho other sections saved all. It is impossible, We think, to find a sound principle which will rescue some liens from its application, and leave others to be nullified by it.
    It is certain that all judgments of the same term have equal liens on lands and tenements; it is certain that these lions can not be “ disturbed ” for one year. Can it be otherwise than certain, then, that none of these liens can be “disturbed,” much less destroyed, by the prior levy of one or more of the judgments ? We conclude, therefore, that all tho judgments before the court, are entitled to pro rata proportions of tho proceeds of tho property sold. Such a decision will harmonize the statute, and make it a consistent whole. Any other, it seems to us, will make it inconsistent, discordant, and self-destructive; and will fail to carry out the principle of tho decisions hitherto made.
    Storer and Gwynne for defendant in error.
    It is admitted by the attorneys for the plaintiff in error that *‘ if land held by perpetual lease be not real estate, quoad judgments, in Ohio, then the first levy binds first, and the decision of the Superior Court, which postponed the judgment of the Northern Bank, to the others, was correct.
    It is only, therefore, in the event of the court’s sustaining the decision made in Loring v. Melendy, 11 Ohio, 355, that any difficulty will arise in the determination of t'he present case. We have no desire, as attorneys for Springer, and Whiteman, and Rockey, to see that decision overruled. We contend that, regarding tho property held under a perpetual lease, which was levied on as real estate, the appropriation of *the proceeds of the sale made by tho Superior court of Cincinnati was correct.
    Judgments are not, of themselves, liens upon property, either real or personal. ' How far they shall so operate depends upon egislative enactment. 2 Ohio, 71. To the act of March 1, 1831, lundor which these judgments wore recovered, we must recur to determine wbat liens they have, whether as derived from their rendition, from the commencement of the term of the court at which they were rendered, from the issuing of the execution upon them, from its coming into the hands of the sheriff, or from a levy being made under it.
    Section 2 of the act of March 1, 1831, provides that the lands and tenements of the debtor shall be bound from the first day of the term, in all cases where such land lies within the county, and all other lands as well as goods and chattels, from the time they shall be seized in execution. Looking at this section alone, it would appear as if all lands and tenements of the debtor, situated within the county where judgment was rendered, were bound by the judgment, from the first day of the term of the court, forever. That this is not the case, however, is admitted. Several provisos or limitations are to bo ingrafted upon this section.
    For it is provided in a separate act, the practice act, sec. 85, Swan’s Stat. 671, that if execution shall not be sued out within five years from the date of the judgment, or if five years shall have intervened between the last execution and (he time of suing out another writ of execution, such judgment shall become dormant, and cease to operate as a lien, and the judgment must bo revived before execution can issue. Here is one limitation upon the unlimited liability of land in the county declared in section 2 of the judgment and execution act. As against the judgment debtor himself, or other subsisting judgment liens, the lien ceases by the lapse of these five years. It sloops until it is revived by the act of the judgment creditor, and even then, although operative as against the land in the hands of,the judgment debtor, where no other judgment creditors have a priority, it is gone as against the land, if *it has passed, before the revival, into the hands of a bona fide purchaser.
    This provision limits the lien as against both other judgment creditors and the judgment debtor. It is equally competent for th,e legislature, and equally important that the time when a judgment begins, and when it ceases, to bind lands in the county should be fixed, as between judgment creditors. There is a propriety in declaring that such lands shall not be bound, as against other judgment creditors, for the same length of time as against the judgment debtor himself, just as the land may cease to be bound as against a bona fide purchaser, while it is bound as-against the judgment debtor. Accordingly, we find another limitation upon section 2 of the judgment act.
    By section 23 of the judgment and execution act, Swan’s Stat. 479, it is enacted “that no judgment, on which execution shall not. have been taken out and levied, before the expiration of one year next after the rendition of such judgment, shall operate as. a lien on the estate of any debtor, to the prejudice of any otherbona fide judgment creditor, but,” etc. Section 2 says lands in the county are bound from the first day of the term. Wo have-already seen that this is so as against the judgment debtor, provided five years do not elapse without an execution; we now find> that lands in the county are so bound by any judgment as against other bona fide judgment creditors only when a year docs not elapse from the rendition without an execution. This twenty-third section confers no right, secures or extends no lien. It appears to us that it is incorrect to consider it in that light. T.he-lien as given is secured by section 2, except so far as it is taken away by other sections. It is limited by section 23 to one year, as against other judgment creditors. Indefinite in duration, under section 2, it is, in one state of lact, limned to five years; in another, to one year. The judgment is a lien, provided, within a. certain time, execution be issued. It is the execution which infuses life and vitality into it, or, rather, which continues its existence, in the one case, by issuing within every period of five years, forever; in the other, as against *those also having legal rights, one year. It is as a limitation that this section, or similar sections, have been treated, and accordingly a junior judgment, with a levy during its year, takes the preference of an elder judgment without a levy during its year, although the levy on the older judgment were prior to that on the junior one. McCormack v. Alexander, 2 Ohio, 71; Patton v. Sheriff of Pickaway County, 2 Ohio, 395; Shuee et al. v. Ferguson, 3 Ohio, 138; Earnfit v. Winans, 3 Ohio, 137; Lessee of Sellers v. Corwin, 5 Ohio, 408. The condition upon which the lien is given as against other judgment creditors, the 'issue of an execution within a year not having been performed, the property was not bound as against them from the first day of the term.

      We find, then, that a judgment binds lands in the county for ■five years, without execution, as against the debtor; that it does not bind for more than one year, without execution, as against ■other judgment creditors. We would further remark that it is ■competent for the legislature, by another and distinct section, further to limit section 2. It was important that they should determine how the proceeds should be distributed or how far lands should be bound, when, under section 2, as limited only by the 23d, several judgments would be in ceguali jure. For a case, where the expiration of the year occurred at different dates, section 23 sufficiently provided. But, where several judgment creditors presented themselves, for all of whom the year expired on the :Same day, who had just exactly the same period within which to levy, and who had levied during that year, what rule of distribution was to be adopted? The legislature foresaw that this question might arise, and provided for it in section 4, which, we contend, covers both lands in the county, and goods, and lands out ■of the county. We see the same principle pervading the enactment mado here as the five-year and one-year limitations.
    As the vitality of the lien, in the latter limitations, depends upon the issue of execution, so it is made to do here. As there the diligence of the judgment creditor is rewarded, so it *is here. The “ra^ie of diligence” is not repudiated, but encouraged throughout the statutory provisions on this subject.
    In the case of lands not in the county, and of goods and chattels, the lion arises and dates from the seizure on execution; in the case of lands in the county, it is continued in being where it otherwise would not be, by the issue of the writ of execution or delivery to the officer. In the latter case the lien depends upon the execution, both in regard to the five-year, the one-year limit.ation, and that in section 4.

    There is nothing certainly in section 4 to exclude lands in the •county from its operation. It limits the race of diligence, and negatives the idea of a priority of lien being obtained by greater ■diligence in suing out executions during the term, or ton days thereafter; it gives to all judgment creditors the space of the term of court, and ten days after its business has closed, to make inquiry and examination where their debtor’s lands lie. But that time was considered a reasonable season for that purpose. 'It >avoids the embarrassment which might occur whon two or more •executions are delivered to the officer on the same day, and refuses to say that the diligence of him, who is only an hour or two prior in time to another, shall be rewarded. It thus conforms to the rules that a term is but one day, and that the law regards not the fractions of days. It prevents the creditor whose case stands earlier upon the docket from gaining an advantage, and the sheriff from giving one, by making a levy under one execution rather than another. It does not interfere with liens, which are entitled to a preference upon real estate under other sections of the law; by its proviso, the idea is expressly excluded that it is intended to clash with them, with section 2 or section 23, to any greater extent than section 23 clashes with section 2. But wherever two judgments have not, as against each other, preferable liens, it gives a preference to that one upon which execution is first delivered to the officer, unless the executions upon both have been sued out within the term, or ten days after, or have both been delivered to the officer on the same day.
    *A11 the sections we have been considering, except this, refer to preferable liens; the lions dating from the first day of the term at which judgment was rendered. This clause, it is evident, applies only to equal liens. These exist under the other sections in three cases: 1. As to lands in the county where the judgments are rendered at the same term. 2. As to goods and chattels and lands out of the county. 3. As to lands in the county where the year has elapsed without execution. To all three of these cases a section of the law of 1824, similar to'the one now under consideration, was said to apply in Patton v. Sheriff of Pickaway Co. 2 Ohio, 396; Riddle v. Bryan et al., 5 Ohio, 52. That it applied to judgments upon none of which levy was made within a year from its rendition, was expressly decided in Waymire v. Staley, 3 Ohio, 366. There it was said, “Halloway having put his execution first into the sheriff’s hands, has obtained a preference.” Whether the remarks as to judgments rendered at the same term, in 2 Ohio, 396, and 5 Ohio, 52, were, or wore not obiter dicta, we see no reason why the court should refuse to adopt them.
    It is argued that the same principle of construction which was applied in 2 Ohio, 396, and 5 Ohio, 52, by which unequal liens were excluded from the operation of a like section, without the proviso excluding preferable liens, should exclude equal liens. We can not assent to the force of this argument. For, to say that a judgment upon which execution has not been levied within a year, takes precedence of' one upon which execution has been so levied, by reason of the writ issued upon the former having been first delivered to the officer, was expressly to declare that a judgment not levied within the year, should operate as a lion to the prejudice of a bona fide judgment creditor, when the statute, in words, declared it should not so operate; and in Riddle v. Bryan, to have held that the bank, for whom judgment had been confessed, had gained any preleronce, would have been to say the judgment by confession should have a lion from another day than that upon which it was signed or entered, when the statute said *tha1. it should only have a lion from that day. Either of these-would have been to sustain a direct inconsistency — a palpable contradic» tion. The present case would be similar to them, and the construction contended for by the attorney for the plaintiff in error, might apply, did the law contain this clause: “No judgment on which execution shall have been taken out and levied before the expiration of one year from the rendition of the judgment, shall operate as a lien to the prejudice of any other bona fide judgment creditor, who, having recovered judgment at the same term, has also levied within the year.” But the clause is in entirely a different form;, it limits the lien to a year — nothing more. It does not secure a lien, of which, within the time, no individual can deprive the judgment creditor. The remark that it does, in 2 Ohio, 399, is not to be taken in the sense which these words, isolated, bear; but its moaning is shown by the rest of the opinion, including this case, within section 4.
    The lien is given by section 2, limited by the other sections. Under section 2, the lien of the Northern Bank ol Kentucky w'ould be overreached by a judgment recovered at January term, 1842, without any levy. By section 23, a preference is given it over such judgment, not levied in a year. But section 23 does not give it a lien, or give a lien to any judgment. It destroys a lien, as against it, and other bona fide judgment creditors. There is no more inconsistency in construing its lien to bo limited by section 4, than there would be in construing the lien of any other judgment, as one in January term, 1842, circumscribed, as against it, by section 23.
    We see nothing in section 4 limiting it to cases where levies are necessary in order to obtain effectual liens; and we perceive, from the foregoing consideration of the different sections relating to the liens of judirments, that the case before the court is not the only-one where suing out the execution adds to the validity of the lien. We can not see how the construction for which we contend, defeats other sections, or makes the statute inconsistent, discordant, and self-destructive. It leaves judgments, elder in point of rendition, to be governed by the ^sections applicable to them, and confines section 4 to a conflict not within any other section.
    We submit to the court, that among judgments rendered at the same term, that shall be first satisfied out of the lands.and tenements of the debtor, upon which the writ of execution is first delivered to the officer, unless the execution upon that judgment, which claims an equality with it, was sued out during the term, or ten days thereafter, or came to the hands of the sheriff on the -same day.
    Daniel Van Matre, for defendants:
    The act regulating judgments and executions, passed March 1, 1831, Swan’s Stat. 470, sec. 4, provides “ that when two or more writs of execution, against the same, debtor, shall be made out during the term in which judgment was r-endered, or within ten days thereafter, and when two or more writs of execution against the same debtor shall be delivered to the officer on the same day, -no preference shall be given to either of such writs; but if a sufficient sum of money is not made to satisfy all executions, the ■amount made shall be distributed to the several creditors, in proportion to the amount of their respective demands. In all other cases, the writ of execution first delivered to the officer shall be first satisfied.
    In 2 Ohio, 395, 399, the court say, in reference to section 4 of the act of 1824, 2 Chase’s Stat. 1298; also, section 4 of the act of 1820, 2 Chase’s Stat. 1145, which are the same as the above section: “In this section the legislature intended to provide for three classes of .cases : 1. Where there are two or more judgment creditors having no priority of lien, as where the judgments are recovered in the same term. 2. In cases where the judgments do not operate as a lien, but the property is bound only from the time when it is.seized in execution, as goods, and chattels, and lands, not situate in the county where the judgment is recovered. 3. For cases where the creditor, in consequence of not having an execution levied within one year, under section 23 *of this ■chapter, has lost the benefit of his lien, so far as that it shall not operate to the prejudice of any other bona fide judgment creditor!” Patton v. Sheriff of Pickaway County, 2 Ohio, 396; Swan’s Stat. 470, n. b.

    The contest in this case was between Patton’s second judgment, recovered April term, 1821; execution sued out in June and levied June 28 1821, set aside in July, 1822; new execution sued out January 23, 1823, and levied February 23, 1823; and the judgment of Allen recovered April term, 1821; execution sued out in Juno, 1821, and levied July 21, 1821, and never set aside. The decision is in favor of Allen.
    Riddle v. Bryan et al., 5 Ohio, 52. This was a contest between a judgment confessed January 19,1820, in December term (which commenced December 6, previous), on a suit commenced January 19, 1820, execution taken out within ten days of the end of the term, and another judgment recovered at the same December term, on suit commenced October 22, 1819; declaration filed October 30, and judgment actually rendered January 14, 1820 : execution issued July 7, 1820, and levied August 14. 1820. It was under the law of 1816 the last-mentioned judgment had priority of lien and held the property.
    My reason for referring to this case is, because the court, at page 52, repeat the very words of the decision in the ease of Patton v. Sheriff of Pickaway County, and say that they are perfectly satisfied with the same. In 3 Ohio, 366, the court say that section 4 of the judgment and execution act was intended to apply to cases where the judgment liens wore equal, and refer to the decision of Patton v. Sheriff of Pickaway County, as being correct.
    By the statute and the above decisions, it seems to me that the-order of the superior court of Cincinnati must be affirmed.
    Another question reserved in this case is, whether the leasehold property sold on execution is to be considered as personal or real estate. If it be personal estate, the decision must, of course, be in favor of the judgment creditors, who are ^defendants, because their levies were before that of the plaintiff in certiorari. But I rely upon the point first argued, and am fully satisfied with the decision of this court in 11 Ohio, 355, that leasehold is real estate ; and I beg leave to state my reasons for this opinion. Because, although a change in the opinion of the court in regard to the last-mentioned decisions, might be a present advantage to my client by deciding the case now before the court in his favor, it might be ultimately to bis disadvantage. There was a bill in chancery, filed in the circuit court of the United States, seventh circuit and district of Ohio, by Nathaniel C. McLean, assignee of Telemaehus B. Coffin, a bankrupt, against all the judgment creditors, parties in the suit now before the court, the object of which was to sell the same leasehold property now in controversy, and distribute the proceeds under the bankrupt law of the United States. That bill was dismissed by the circuit court at the July term, 1843, on the ground that the Supreme Court of Ohio had, by the decision in 11 Ohio, 355, settled the law that lease hold in this state was real estate. McLean, Assignee, v. Rockey et al., 1 West. L. J. 1843, p. 300.
    I shall endeavor to show, by reference to the statutes and decisions, that the lien of a judgment on a leasehold is precisely the same as on a fee simple.
    In Lessee of Bisbee v. Hall, 3 Ohio, 465, note at the end of the report, the reporter says: “The court must have considered the land sold as a chattel, otherwise they would have set aside the verdict in favor of the plaintiff, because the plaintiff claimed under a sheriff’s deed, and the term for ninety-nine years had been sold as a chattel.”
    Two things are to be observed in this case : 1. The lease was ninety-nine years, and not renewable. 2. The premises were levied on under a fi.fa. et lev. fa., August 4, 1819; sale made April 4, 1820, and deed made May 16, 1820, all of which took place before the act of January 29, 1821. 19 Ohio Gen. L. 102; 2 Chase, 1185; Swan’s Stat. 289, in note. It, is provided by this act “that all lands, of whatever description, lying within this slate, the owner or occupier of which hold *their title thereto by the tenure of permanent leases, shall, in cases of judgments had and executions levied thereon, be considered as real estate ; and the officer levying the execution or executions shall conform to and be governed by the provisions of the several acts regulating judgments and executions, and such other laws as may hereafter be made and provided for the sale of real estate taken in execution.”
    This act has never been repealed; it is put down in Chase as in-force. It is by the note in Swan’s Stat. 289, supposed to bo superseded by the act of March 5, 1839. Swan’s Stat. 289; 37 Gen. L. 44.

      This last-named act is per'cctly consistent with the former, and does not repeal it; but both may stand together..
    It is decided in 5 Ohio, 207, at December term, 1831, in the case of the Widow and Heirs of William Reynolds v. Commissioners of Stark County, that the widow and heirs alone could not maintain a bill in chancery for the specific execution of a contract for making a lease for ninety-nine years, renewable forever, but that the administrator must be made a party, on the ground that the lease was personal property.
    Again, it is decided in 7 Ohio, 123, pt. 1, December term, 1835, in the case of Murdock et al. v. Ratcliff et al., that a lease, by the common law, of whatever duration, is but a chattel. This was not a case in any way relating to an execution. Andrew Murdock died possessed oi a lease for ninety-nine years, renewable forever, in land owned by the Miami University; and, after providing for payment of his debts and one legacy, devised to his wife, Mary, all the residue of his estate, real and personal, to hold during the period of her natural life. In this case the testator left no children. His widow married one Cathcart, who conveyed the leasehold estate to Tiffany. The complainants, who were brothers and sisters of the deceased, filed their bill, setting forth that they were the heirs and in possession of said leasehold estate, and praying to be quieted in their title. The court held that the heirs, being brothers and sisters, had no right, because, as the leasehold was personal property, and there were no children, the whole of the personal property belonged to the widow. In this case, the court refer to the above cases of 3 Ohio, 165, and 5 Ohio, 207, neither of which is of any weight in the case now before this court. The court refer to the act to establish the Miami University, 7 Ohio L. 188, sec. 10 (the report s ys the Ohio University, which is a mistake), which declares that the tenants and lessees shall enjoy all the rights and privileges which they would bo entitled to enjoy did they hold their lands in fee simple, and consider this provision designed to secure to the tenants civil and political privileges, and not to change the quality of their estates.
    Soon after this decision of the court, to wit, March 22, 1837, the legislature passed an act, entitled an act to amend the act to establish the Miami University, 35 Local Laws, 301; Swan’s Stat. 289, in note, by section 5 of which it is enacted, “that, when any person shall die intestate, having right or title to any lease or leases, situate, lying, and being within this state, held by virtue of any lease or leases, for the term of ninety-nine years, renewable forever, or for any other term of years, renewable forever, such lands and tenements shall descend to the heirs of such intestate, in the same manner, and subject to the same conditions and restrictions as estates of inheritance do or may descend to the heirs of intestates, by virtue of the'provisions of the laws in force on that subject.”
    It will be seen that this act does not relate to executions or judgments. The law of January 29, 1821, on that subject, continued all the time in force.
    The legislature, by an act passed March 5, 1839, entitled “an act in relation to permanent leasehold estates,” Swan’s Stat,. 289, provides “that permanent leasehold estates, renewable forever, shall be subject to the same law of descent and distribution as estates in fee are or may be subject to; and sales thereof, upon execution, or by order or decree of the court, shall be governed toy the sarpe laws that now or may hereafter govern such sales of estates in fee.”
    *This question in relation to permanent leasehold estates is fully decided by this court in 11 Ohio, 355. The court say, “ Since the passage of this last act” (March 5,1839), “ we may feel ourselves admonished, by the uniform policy of our legislature, by calling things by their real names, to harmonize our whole system of land jurisprudence. To withdraw permanent leasehold estates from their anomalous position between chattel and realty, and by calling them what in truth they are, lands, we relieve them from all doubt as to the principles and laws which shall control them, and assign them a certain and fixed place in the law. A permanent leasehold estate is not a chattel, but is, in truth, land carrying the fee. Such is the nature of the estate, and so it has been considered and treated in the legislature of our state. We therefore declare, that permanent leasehold estates are lands, subject to all the rules and laws which attach to land for all purposes, and that judgment lions attach to them as lands.”
    It appears, by a review of the foregoing statutes and decisions, that permanent leasehold estates have been bound by judgments and executions, in the same manner as lands held in fee simple, since January 29, 1821, and that they were considered as personal estate in the distribution of the property of deceased persons, until March 22, 1837, at which time they were declared, by the legislature, to be the same as lands in that case, also, and that the act of March 5,1839, was passed for the purpose of reducing into one the several branches of the law in relation to this kind of property.
    The real question in the case now before the court is, whether permanent leasehold estates are, by law, bound by a judgment, in the same manner as lands. It is wholly immaterial whether they-be considered real or personal estate, provided they be bound by ajudgment, in the same manner as lands. Suppose the legislature should pass a law, that a certain kind of personal property,, belonging to a debtor — for instance, all pleasure carriages — should be bound for the satisfaction of a judgment, from the first day of the term at which such judgment was rendered. In such case, that kind of property *would be bound, and would not bo transferable after the first day of the term. Notwithstanding such a law, the same property would be subject to all the incidents of personal property in other respects; and if a man should die, owning it, the law would distribute it among his representatives, as other personal property. I suppose this was-the situation of permanent leasehold estates between January 29,1821, and March-22, 1837.
   Birchard, J.

Two questions arise in this case:

1, Are judgments liens upon permanent leasehold estates for onoyear ?

2. Can one judgment, by a levy upon lands within ten days, obtain a preference over other judgments rendered at the same time, and levied within the year?

The solution of the first question depends upon the correctnossof an opinion of this court, reported in Loring v. Melendy, 11 Ohio, 357. The opinion alluded to, was upon a point not necessary to the determination of the cause, and not considered by all the-members of the court at the time. Hence the remark made in the case of Lessee of Boyd v. Talbert, 12 Ohio, 213, “the question whether a lease be realty or personalty,” is open. This case brings the subject fairly before us, and is the point upon which the decision must turn.

It is not doubted that at common law, leasehold estates wore but chattel interests. Upon the death of the owner, they vested in the executor, or administrator, and not in the heir, and were subject, to the debts of' the decedent as chattels.

Adjudications upon these points had been so frequent that, after the reason of the rule had ceased, courts, whose office is to declare the law, not to create it, felt bound by the numerous decisions; and the common law, in this respect, was the law of Ohio, until modified by legislative enactment. Thus in Bisbee’s Lessee v. Hall, 3 Ohio 449, it was held that a lease for ninety-nine years was liable to execution as a chattel. And in Reynolds v. Commissioners of Stark County, 5 Ohio, 204, that a lease ior ninety-nine years, renewable forever, was personal ^property, which, on the owner’s decease, went to the executor. If, then, the legislation of the state had not affected the rales of the common law, the determination of the superior court was correct, for if the leasehold interest be) regarded a chattel; no lien attaches prior to a levy, and the three judgments upon which executions were issued within ten days-after the close of the term at which they were rendered, gained priority, and had a right to a pro rata division of the proceeds of the sale. The earliest statute to which our attention has been called, is the act of 1818, 2 Chase’s Stat. 1040, requiring leasehold estates to be conveyed with the same formality as estates of freehold.

Next came the act of January 29, 1821, which provides that all lands of whatever description, lying within the state, the owners of which hold their titles by the tenure of permanent leases, “shall, in eases of judgment had, and executions levied thereon, be considered as real estate.” Chase’s Stat. 1185; Swan’s Stat. 289. This act has never been repealed, but the act of March 5, 1839, Swan’s Stat. 289, has been thought to have superseded it. Section 1 provides, “that permanent leasehold estates, renewable forever, shall be subject to the same law of descent and distribution as estates in fee are, or may bo subject to; and sales thereof, upon execution, or by order of the court, shall be governed by the same laws that now, or hereafter may, govern such estates in fee.” These statutes effect important changes in the common law.

1. The act of 1821, as to judgments had, makes the leasehold estate real estate — requires courts to consider it, so far as the judgments are concerned, real estate. This is the fair construction of the language, “in all cases of judgments had, and execution» levied.”

It follows, then,' that the lien of a judgment, which is given upon ■real estate, attaches to such leasehold estates, because, as to the judgment, it is to be considered real estate. So, for all purposes ■connected with the levy and sale, and of the rights, either of judgment creditor, or judgment debtor, or purchaser, in any way connected with the judgments, executions, and levies.

*Tbe language of the act of 1829 is different. It does not -direct how liens shall be regarded in reference to “judgments had,” and does not, therefore, necessarily supersede the act of 1821. The two are therefore to be regarded as being in force. Both may well stand together. The legislative intention should be gathered from a consideration of the provisions of both. Laws in pari materia should be construed together. We hold, then, that for all purposes connected with the laws regulating judgments, executions, sales, and descents, permanent leasehold estates .■are to be regarded as if they were freeholds, and not chattels.

The case of Reynolds v. Commissioners of Stark County, 5 Ohio, '204, above referred to, determined in 1832, was a bill to enforco the specific performance of a contract to make a lease ; the heirs were held to bo not the proper parties. This decision may well be reconciled with this opinion. In that case, no question arose under the act of 1821, or the acts of 1837 and 1839, and it, consequently, can contain nothing conflicting with this decision. In Murdock et al. v. Ratcliff, 7 Ohio, 123, the question was, whether the estate in land of the Miami University, held by permanent, lease, descended, on the decease of the owner, to the heir, or vested in the administrator. In pronouncing the opinion, the coutt say: “ The only statute wo find on this subject was a statute which de■clared that the tenants, or lessees, shall enjoy all the rights and •privileges which they would bo entitled to enjoy did they hold their lands in fee simple; a provision designed, in our opinion, to secure to the tenants civil and political privileges, not to change the quality of their estates.” To reconcile this decision with our construction of the act of 1821, it is only necessary to observe that the case presented no question concerning judgments and executions, and the cause was decided in 1835, before the other acts referred to were passed.

The next question arises under the act of March 1, 1831. Swan’s Stat. 467. The second section of this act gives a lien upon lands within the county, from the first day of the *term at which. judgment was rendered. By section 23 of the same act, no judgment, on which execution shall not have been taken out, and levied within a year, shall operate to the prejudice of any other bona fide judgment creditor, etc. By section 4, two or more writs issued on judgments, within ten days after their rendition, have no preference to each other ; so, if delivered to the officer on the same day. All other writs have preference in the order of their delivery, provided “ that nothing herein contained shall be so-construed as to affect any preferable lien which a judgment may have upon lands,” etc.

These sections refer to liens arising both from judgments and levies. Section 2 gives the judgment a. lien on lands within the county. Section 4 gives, or rather recognizes, a lien from the time of' the levy, both upon lands and personal property. The latter regulates the lien which it creates, but provides against any interference with older or preferable liens. Section 23 creates no-lien ; it merely limits it in the given case. Let us apply the principle of the proviso in section 4 to this case. The defendants each acquired equal liens from the date of the levies made upon their-executions; but the plaintiff had a lien from the date of her judgment, which was elder, and therefore a preferable lion. Under the proviso of section 4, it would overreach the right of defendants. They are thereiore thrown back, and compelled to rely on their judgment liens created by section 2, and limited by section 23, or lose the proceeds of their sales; relying upon their judgments, they have equal liens with the plaintiff, and no more. The money should have been distributed to each of the parties pro' rata, in proportion to the amounts of their several judgments, and in failing to make this equal distribution the court below erred.

Judgment reversed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    *William P. Simpson v. John Pitman.
    In an action for slander a new trial will not be granted, on the ground of excessive damages, unless the amount be so large as to evince prejudice,, partiality, or corruption in the jury.
    The expression of opinion, before being impaneled, is good cause of chab lenge to a juror, but is not ground for setting aside a verdict.

      This was a motion for a new trial, from Belmont county.
    It is an action on the case for slander, tried to a jury on the last circuit of the Supreme Court, in the county of Belmont. A verdict was rendered for the plaintiff, for $850 damages, and reserved here for decision, on a motion, filed by the defendant, Pitman, for a new trial.
    The reasons alleged for the motion are:
    1. That the damages are excessive.
    2. That three of the jurors who sat on the trial, before they were impaneled, had repeatedly expressed opinions, publicly, as to the merits of the case, that the defendant was guilty, and ought to pay heavy damages, which the defendant did not learn until ■after the rendition of the verdict.
    3. That Tussey, the jailer, under the plaintiff, who is sheriff
    • of the county of Belmont, selected more than one of the jurors, ■who was called into the box, which fact was unknown to the defendant until after the jury was impaneled, sworn, and the trial had progressed.
    Cowen and Ramage argued for defendant, in favor of the motion.
    John C. Tidball and James Weir, for plaintiff, contra.
   Wood, J.

The words charged in the declaration to have been ■spoken of the plaintiff by the defendant, were: “Simpson is a sheep thief. He stole sheep. He stole twenty-five of my brother’s sheep,” etc.; laying the same words, substantially, in different ways. The defendant plead the general issue; and, on the trial, the plaintiff gave evidence which clearly established *the speaking of the words. It also appeared that the plaintiff was driving a flock of sheep, and the sheep of the defendant’s brother, by some means, intermixed with the drove, and on inquiry, the plaintiff denied any knowledge of haying any in his flock but his own. On examination, however, the sheep of the brother of the defendant wore found in plaintiff’s drove. The plaintiff was a candidate for the office of sheriff of Belmont county. He and the defendant belonged to different political parties, and the words wero spoken of the plaintiff, in reference to him as a candidate for sheriff. The general character of the plaintiff was good. It did not appear that any one believed the report put in circulation by the defendant. The plaintiff was elected sheriff by ,a decisive majority, and the verdict was for an amount nearly or quite equal to the value of the whole property the defendant possessed.

"Under the above circumstances, the first question is, are the damages excessive ?

The right to grant new trials for this cause, in actions of slander, is denied by no authority that I have been able to find. It would, indeed, be a reproach to the law if this power did not exist, and it is clearly recognized in many adjudications. There is probably no class of cases whore the feelings of a jury are more liable to improper excitement, and to bo controlled by impulse, rather than sober and unimpassioned judgments, than in slander. If the power to grant new trials is never to be exercised in this action, it would not unfrequently be employed as the instrument of rank injustice and ruinous oppression. The books, however, are uniform, that the verdict should not be set aside unless the amount of damages is so flagrantly outrageous and extravagant as to show that the jury acted corruptly, or under the influence of passion, partiality, or prejudice. 2 Wend. 352; 10 Serg. & Rawle, 399; 12 Johns. 234; Styles, 462; 1 Strange, 92; 5 Durn. & East, 257; 7 Durn. & East, 527; 6 Durn. & East, 619; 5 Cow. 351; 2 Bay, 204. Wo recognize the rule, and while we adhere to it, its application to the case at bar, in our opinion, requires of us to set aside this verdict. It is difficult'to put a case on paper *so as to convey the same impressions that are derived from the hearing of a trial; and the judges who were not present must be influenced, in a measure, by the opinions of those who presided at the investigation.

But, aside from this, when it is considered that the character of the pilaintiff was vindicated, in a measure, by his election; that no one believed the words spoken of him; that they were uttered during the heated contest of the canvass; that there was some reason, though it may have been slight, to show the plaintiff did not act with the utmost frankness and fairness in reference to the sheep, we think the verdict for $850, all the plaintiff was worth, is evidence that it was the result of some unaccountable prejudice, and that it ought not to be sustained. There was a clear right of recovery. It was a fit casé for exemplary damages; but we could not, on the trial, nor can we now, see anything in the evidence, under all the circumstances, if fairly and impartially weighed by the sober and deliberate judgment of a jury, that ought to strip the defendant of his entire property.

The other objections to the verdict are not sustainable. The proof is clear, it is true, that at least one of the jurors had formed, and frequently expressed, opinions unfavorable to the defendant’s-case beiore he was impaneled upon the jury, but this was only cause of challenge. By not putting the inquiry to the jury as to previously formed opinions, and ascertaining, or at least endeavoring to ascertain the fact, any such cause of challenge was waived, and the defendant can not afterward avail himself of such neglect, to set aside the verdict.

The third objection to the verdict is that the jailer named more than one of the jurors called upon the panel, etc.; but it is sustained by no proof submitted, and requires, therefore, no further notice.

The verdict is set aside, and a new trial granted at defendant’s costs, on- the ground of excessive damages alone.

Note. — After this opinion was pronounced, the plaintiffs counsel, on suggestion by the court, agreed to take judgment for $450; and judgment-was-accordingly entered in favor of the plaintiff for that sum.