Alvey, J.,
delivered the opinion of the Court.
On this appeal the leading question is whether, by our practice, judgments rendered at the same term of Court all have relation to the first day of the term, so that no priority as between them can be claimed in the distribution of the proceeds of the real estate of the debtor upon which the judgments have attached as liens.
It is a general rule, in the common law of England, that all judgments rendered during the term relate back to the first day of the term, and are considered as rendered on that day. This general intendment of law is supposed to be founded in principles of convenience, and is recognized and asserted in many decided cases. But it has been entirely abolished as against purchasers by the Statute of Frauds and Perjuries, whereby it is declared that all judgments as against purchasers bona jide, for valuable consideration, of lands, &c., to become charges thereon, shall, in consideration of law, be judgments only from such time as they shall be signed by the [230]*230proper officer, whose duty it is to note the day of the month and year of such signing; and that such judgments shall not relate to the first day of the term whereof they are entered. This Statute provision is confined to the case of purchasers, and all other cases are to be determined by the general rule, and such exceptions thereto or qualifications thereof as may have become established in practice.
Has, then, this general rule any well founded exceptions or qualifications, such as embrace the case before us ? We think it has, and that a brief examination of the authorities will suffice to show the extent of such exceptions or qualifications.
In 3 Salk, 212, Ch. Justice Holt states the rule thus: “ A judgment shall have relation to the first day of the term, as if it was given on that very day, unless there is a memorandum to the contrary, as where there is a continuance of the cause till another day in the same term.” And in accordance with such qualification we find the rule subsequently stated by Lord Mansfield, in the ease of Swann vs. Brown, 3 Burr., 1595. There the question was whether the judgment related to the essoin-day of the term; or to any day prior to the essoinday of the return. Of this the learned Judge said the judgment could not relate to the first day of the term, because it could not be given before the return of the writ, which appeared by the record to be in the term ; but that it did relate to the essoin-day of the writ; and he declared emphatically that “ where any such matter is apparent upon the face of the record, the judgment then relates only so far back as it may, consistently with the record, be intended or supposed to relate.”
In the case of Lord Porchester vs. Petrie, 3 Douglas, 361, a leading case upon the subject, it was decided that all judgments, as a general rule, relate to the first day of the term, and that the priority of one of two judgments signed on the same day could not be averred. Two of the questions in that case were: 1st. Whether the priority of one judgment over another could be averred, when it was admitted on the record that both judgments were given on the same day; and 2d. [231]*231Supposing that such an averment could be made, whether it was a fact that could be tried by the country. The first of these questions was resolved in the negative, and in regard to the second, it became unnecessary to decide it. But in the opinion of the Court, delivered by Lord Manse tel d, reference was made to cases and their authority admitted, where the ordinary relation of the judgment to the first day of the term was limited or restrained by a memorandum, rendering it inconsistent with the record for the general intendment of law to prevail. Speaking of the case of Hays vs. Wright, Yelv., 35, it was said: “ It is there allowed that, in point of law, every judgment relates to the first day of the term ; but the Court thought it was admitted on that record that the former judgment was given after the 20th of April. So in the case of Miller vs. Bradley, (8 Mod., 189,) the Court held, that if it appeared by continuances that it was not a judgment till a particular day in the term, it should not relate to the first day of the term.”
This would be sufficient to show that the general rule of relation is not of invariable application, and whether it can be applied in any case will always depend upon the facts displayed of record. But in the more recent ease in the Exchequer of Bennett vs. Isaac, 10 Price, 154, Graham, B., was even more explicit than any of the Judges in the preceding cases, in stating under what circumstances the Court would disregard the principle of relation, and allow the truth of the case to prevail over the fiction of law. He said: “ A judgment of the vacation being considered as referring to the first day of the term, is merely a fiction of law; and it may have many good effects, as the rendering a search more easy. But that fiction must not be suffered to work an injustice, and that is an established maxim of the law. The Court, to prevent its operating injuriously, may, and frequently does inquire of the fact of the actual day on which judgment was entered up, as for the purpose of ascertaining whether the case is within the Statute of Limitations, and on other occasions of the like [232]*232nature. By inspection of the record we find that an imparlance was granted till the 23d of January, and from the marginal note we learn the precise day on which judgment was actually signed; and the marginal note is part of the record, and it is made so for the express purpose of preventing injustice in consequence of the legal fiction.”
In our practice judgments are never in fact signed, as in England, but are entered either in the presence or by the express order of the Court, and the docket is in fact the judgment roll, and all the entries on it are matters of record. Hence, the date of the rendition of the judgment, which, in all cases, should be entered on the docket, is not only a matter of record proving itself, but is part of the judgment, and all the incidents of the judgment, as to the time of their attachment, must have reference to such date.
Seeing to what qualification the general rale of relation is subject, what is the case before us?
There are five judgments of the Circuit Court for Prince J-eorge’s county, rendered at the November Term, thereof, 1857. The first four bear date the 6th of November, 1857, and the fifth is dated the 11th of the same month. And it is now claimed that this fifth judgment, though dated several days subsequent to the other four, should have equal priority with them, and that the distribution from the insolvent estate should be pro rata to their respective amounts; and this upon the principle of relation, by which all judgments of the same term are taken, to be rendered on the first day of the term.
Now, to indulge this doctrine of relation contended for by the appellee as applicable to this case, would be a singular instance of allowing a palpable truth to be overcome by fiction. All of these judgments bear their respective dates on their very face, .and such dates are therefore provable of record; and if, notwithstanding, the principle of relation be applied, the record evidence is thereby utterly refuted and nullified, and a mere fiction substituted in its stead.
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Alvey, J.,
delivered the opinion of the Court.
On this appeal the leading question is whether, by our practice, judgments rendered at the same term of Court all have relation to the first day of the term, so that no priority as between them can be claimed in the distribution of the proceeds of the real estate of the debtor upon which the judgments have attached as liens.
It is a general rule, in the common law of England, that all judgments rendered during the term relate back to the first day of the term, and are considered as rendered on that day. This general intendment of law is supposed to be founded in principles of convenience, and is recognized and asserted in many decided cases. But it has been entirely abolished as against purchasers by the Statute of Frauds and Perjuries, whereby it is declared that all judgments as against purchasers bona jide, for valuable consideration, of lands, &c., to become charges thereon, shall, in consideration of law, be judgments only from such time as they shall be signed by the [230]*230proper officer, whose duty it is to note the day of the month and year of such signing; and that such judgments shall not relate to the first day of the term whereof they are entered. This Statute provision is confined to the case of purchasers, and all other cases are to be determined by the general rule, and such exceptions thereto or qualifications thereof as may have become established in practice.
Has, then, this general rule any well founded exceptions or qualifications, such as embrace the case before us ? We think it has, and that a brief examination of the authorities will suffice to show the extent of such exceptions or qualifications.
In 3 Salk, 212, Ch. Justice Holt states the rule thus: “ A judgment shall have relation to the first day of the term, as if it was given on that very day, unless there is a memorandum to the contrary, as where there is a continuance of the cause till another day in the same term.” And in accordance with such qualification we find the rule subsequently stated by Lord Mansfield, in the ease of Swann vs. Brown, 3 Burr., 1595. There the question was whether the judgment related to the essoin-day of the term; or to any day prior to the essoinday of the return. Of this the learned Judge said the judgment could not relate to the first day of the term, because it could not be given before the return of the writ, which appeared by the record to be in the term ; but that it did relate to the essoin-day of the writ; and he declared emphatically that “ where any such matter is apparent upon the face of the record, the judgment then relates only so far back as it may, consistently with the record, be intended or supposed to relate.”
In the case of Lord Porchester vs. Petrie, 3 Douglas, 361, a leading case upon the subject, it was decided that all judgments, as a general rule, relate to the first day of the term, and that the priority of one of two judgments signed on the same day could not be averred. Two of the questions in that case were: 1st. Whether the priority of one judgment over another could be averred, when it was admitted on the record that both judgments were given on the same day; and 2d. [231]*231Supposing that such an averment could be made, whether it was a fact that could be tried by the country. The first of these questions was resolved in the negative, and in regard to the second, it became unnecessary to decide it. But in the opinion of the Court, delivered by Lord Manse tel d, reference was made to cases and their authority admitted, where the ordinary relation of the judgment to the first day of the term was limited or restrained by a memorandum, rendering it inconsistent with the record for the general intendment of law to prevail. Speaking of the case of Hays vs. Wright, Yelv., 35, it was said: “ It is there allowed that, in point of law, every judgment relates to the first day of the term ; but the Court thought it was admitted on that record that the former judgment was given after the 20th of April. So in the case of Miller vs. Bradley, (8 Mod., 189,) the Court held, that if it appeared by continuances that it was not a judgment till a particular day in the term, it should not relate to the first day of the term.”
This would be sufficient to show that the general rule of relation is not of invariable application, and whether it can be applied in any case will always depend upon the facts displayed of record. But in the more recent ease in the Exchequer of Bennett vs. Isaac, 10 Price, 154, Graham, B., was even more explicit than any of the Judges in the preceding cases, in stating under what circumstances the Court would disregard the principle of relation, and allow the truth of the case to prevail over the fiction of law. He said: “ A judgment of the vacation being considered as referring to the first day of the term, is merely a fiction of law; and it may have many good effects, as the rendering a search more easy. But that fiction must not be suffered to work an injustice, and that is an established maxim of the law. The Court, to prevent its operating injuriously, may, and frequently does inquire of the fact of the actual day on which judgment was entered up, as for the purpose of ascertaining whether the case is within the Statute of Limitations, and on other occasions of the like [232]*232nature. By inspection of the record we find that an imparlance was granted till the 23d of January, and from the marginal note we learn the precise day on which judgment was actually signed; and the marginal note is part of the record, and it is made so for the express purpose of preventing injustice in consequence of the legal fiction.”
In our practice judgments are never in fact signed, as in England, but are entered either in the presence or by the express order of the Court, and the docket is in fact the judgment roll, and all the entries on it are matters of record. Hence, the date of the rendition of the judgment, which, in all cases, should be entered on the docket, is not only a matter of record proving itself, but is part of the judgment, and all the incidents of the judgment, as to the time of their attachment, must have reference to such date.
Seeing to what qualification the general rale of relation is subject, what is the case before us?
There are five judgments of the Circuit Court for Prince J-eorge’s county, rendered at the November Term, thereof, 1857. The first four bear date the 6th of November, 1857, and the fifth is dated the 11th of the same month. And it is now claimed that this fifth judgment, though dated several days subsequent to the other four, should have equal priority with them, and that the distribution from the insolvent estate should be pro rata to their respective amounts; and this upon the principle of relation, by which all judgments of the same term are taken, to be rendered on the first day of the term.
Now, to indulge this doctrine of relation contended for by the appellee as applicable to this case, would be a singular instance of allowing a palpable truth to be overcome by fiction. All of these judgments bear their respective dates on their very face, .and such dates are therefore provable of record; and if, notwithstanding, the principle of relation be applied, the record evidence is thereby utterly refuted and nullified, and a mere fiction substituted in its stead. No Court of Justice should ever allow a fact of record thus to be perverted.
[233]*233The fiction of relation being excluded by the facts of record, the liens attach from the respective dates of the judgments, and they are entitled to priority accordingly. And this accords with what has been repeatedly declared by learned Judges of this State, when speaking of the time from which the judgment lien has existence. As in the cases of Jones vs. Jones, 1 Bland, 448; Coombs vs. Jordan, 3 Bland, 298; Hanson vs. Barnes, 3 Gill & John., 359, and Miller vs. Allison, 8 Gill & John., 36, in each of which it was said that judgments create liens on the real estate of the debtor from the date of rendition.
To apply the doctrine of relation to judgments like those before us would, most manifestly, work great injustice to those who 'have supposed that the lien became effective only from the actual date of the judgment. The lien itself is the mere consequence of the right to sue out execution to affect the lands of the debtor; and it appears rather anomalous at any rate, that it should be allowed to reach back from the last, it may be, to the first day of the term, and affect all persons concerned, except purchasers for value, during a period of time when neither judgment nor right of execution existed. It would appear to be neither calculated to promote justice, nor consistent with the equitable doctrine of notice.
As between' judgments rendered on the same day, whether an averment will be allowed as to which has priority in point of fact, is a question that would appear from the authorities to be clearly settled in the negative; but whether a judgment rendered without date entered of record is to be conclusively referred by relation to the first day of the term, or whether, in favor of judgments in fact prior in date, it will be allowed to be shewn the actual priority, is a question of some dispute; though the reason and justice of the thing would seem to require that the actual date of the judgment, over which priority is claimed, should be allowed to be shewn; for, as Lord Tenteeden, C. J., observed, in regard to this question of the relation of a judgment, in the case of Lyttleton vs. Crosse, [234]*2343 Bar. & Cres., 317, “ it is a general rule, that where it is for the interest of the party pleading to show that a proceeding did not take place at the precise time when by fiction of law it is supposed to have happened, it is competent for him to do so.” And, in the same case, Mr. Justice Bailey, said: “Whenever a fiction of law works injustice, and the facts which by fiction are supposed to exist are inconsistent with the real facts, a Court of Law ought to look to the real facts.” And if so in a Court of Law, a fortiori should a Court of Equity regard the real facts rather than those supposed by fiction.
' It is insisted, however, that although there be error in account E, because of the allowance of equal priority to the judgment of the appellee with the judgments of the appellants, the order ratifying that account cannot be reversed in this Court, inasmuch as the appellants did not file in the Court below exceptions to the account under the Act of 1861, ch. 33.
To this position we cannot accede. Account E was not stated by the auditor to represent his own views of the rights of "the parties, but was stated at the request of the appellee, and as a mode of fully presenting and illustrating his own claim as against those of other creditors. Such an account, brought into the cause with other accounts presenting different views of the conflicting claims of parties, does not require exceptions to be filed thereto, in order to enable parties affected by it to take objections to it in this Court. The Act of 1861, ch. 33, is but the re-enactment of the provision in the Act of 1825, ch. 117, sec. 2, in regard to except tions to accounts, and under this last mentioned Act it was held, in Wells vs. Beall, 2 Gill & John., 458, that it was not necessary to file exceptions to the auditor’s report, to take advantage of objections in the Appellate Court, which were raised by the pleadings in the cause, and which did not depend upon the state of the. accounts, though an account might be necessary to ascertain the extent of the claim. [235]*235And so, in the ease of Dennis vs. Dennis, 15 Md., 73, it tvas held, that accounts made by the auditor in accordance with the instructions of the parties, both as to principles and details, did not require exceptions to be tiled to enable parties to take objections to them in this Court.
(Decided 21st October, 1870.)
The order of the Court below, of the 9th of July, 1869, in so far as it ratifies account E, must be reversed, as to the distribution to the judgments of the appellants, and the cause remanded, that another account be stated in accordance with the principles of this opinion, and the decree herewith filed.
Order reversed and cause remanded.