1 U.S. 371 (1788)

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U.S. Supreme Court

GIBBS v. GIBBS, 1 U.S. 371 (1788)

1 U.S. 371 (Dall.)


Court of Common Pleas of Philadelphia County

December Term, 1788

The case was briefly this: A certain Aaron Musgrove had brought a qui tam action against the Defendant, Ann Gibbs, in which, after a trial in the Supreme Court, he obtained a judgment on the second day of October, 1788; but no execution was thereupon issued. On the fourth day of the same month, however, the Defendant having then confessed judgment in this Court to the Plaintiff, Benjamin Gibbs, a Fi. sa. was issued in this cause, and duly executed upon a house and lot of ground in Philadelphia; after which Mrs. Gibbs committed an act of bankruptcy, and the Sheriff paid the money levied by virtue of the Fi. sa. into the hands of the Prothonotary, to be disposed of as the Court should direct.

In the course of the argument, there were some insinuations of collusion, with respect to the second judgment; but as no proof was offered, the only question before the Court was, whether, under all

Page 1 U.S. 371, 372

the circumstances of the case, Musgrove's prior judgment was entitled to satisfaction out of the money levied on the Fi. sa. in preference to the subsequent judgment on which the writ had issued? See 3 State Laws 655. Sect. 30. Bradford and Sergeant, arguing in favor of the prior judgment, admitted, that it was no lien against the assignees of the bankrupt, or the general creditors under the commission; but contended, that, unless it was for the general benefit, no construction of the act of Assembly should be made to divest the lien which the priority of Musgrove's judgment had obtained: a lien, they insisted, clearly binding as to a purchasor, and, consequently, as to person levying on real estate, who is to be considered, in that respect, a purchasor. They said, that they had not been able to find any authority more in point than 1 P. Will. 737. but urged, that the want of a direct precedent was in their favor; for, if the attempt to destroy a lien of this kind could have succeeded, it must frequently have occurred in the uniform struggle that had been made to defeat the bankrupt laws of England. It was further observed, that there had be no laches on the part of Musgrove, for he could not issue an execution 'till the expiration of four days after his judgment was obtained; that it was established long before the statute of frauds, that the first judgment shall be first paid, although the execution was issued upon a subsequent one; that the statute and our act of Assembly made no other alteration in the common law, than that of substituting the day of docketing for the relation to the first day of the term; and that, therefore, independent of the bankrupt law, Musgrove's claim was indisputable. But they also contended, that, taking the bankrupt law into view, it did not interfere between lien and lien at common law; but is merely directory in the 30. Sect. how the debts shall be paid where no execution has been levied. The words do not include the case; and a former statute, or rule of common law, cannot be repealed or annulled, by implication. Nor could the intention of the Legislature embrace it; for, that was to make an equal distribution among the creditors at large; and not to ascertain a right, as between two individuals. Whether, indeed, it is a real or pretended debt for which the second judgment is confessed, there are no means to prove from the want of a Court of Chancery; and whether the commissioners might recover the money from Musgrove is a question, that cannot affect the present controversy, or give Gibbs a right to retain it, which he would not otherwise have. Ingersol and Lewis, for the Plaintiff in the execution, stated, that by the bankrupt law, executions, mortgages, and pledges, were considered in the same light; and that the rule of law in the distribution of a bankrupt's estate, placed all other descriptions of creditors on the same footing, regarding the quantity, and not the quality of their debts. Green. B. L. 100. 101. 136. 146. 190. 12 Mod. 446. Com. Dig. 532. 2 Black. Com. 487. 1 Bac. Abr. 258. They insisted, as the property would indisputably vest in the commissioners [1 U.S. 371, 373]

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