Lemon v. Heirs of Jacob Staats

1 Cow. 592

Opinion

Curia.

This is not the case of Waterman v. Haskin, and Adams v. Dyer, where the judgments were docketed at the same time, and the preference was to be determined by the greater vigilance in following them to execution. The statute,

(d) speaks of the time, not the day, of filing the record. The Clerk is to note the time. The statute(e) contains a similar provision in relation to mortgages, which are to take preference according to the times of their registry respec-tively» So of an execution : it shall not bind the property of the goods of any person, &c. but from the time when it is delivered to the officer. (f) In all these instances, the statute considers the time at which the act is done, as the mate- * * rial circumstance to fix the preference. In the cases cited, the Clerk had not noted the time of day. In Adams v. Dyer, the Court express a doubt whether they were at liberty tó inquire into the fractional parts of a day, in order to see which record was first filed; but the point did not arise in the case, nor has it ever been decided. Perhaps the act Would be satisfied, should we confine our attention to the day of filing; but we think it more proper to look to the precise time, if we are not forbidden by any rule of law to notice the fractions of a day ; and so far from this being forbidden, it is warranted by direct authority. In Johnson et al. y. Smith,(g) it is decided that the Court will inquire not only into the day but the hour of the day, when this becomes important for the purposes of equity. Liens upon land are created, and take effect from the time of filing the roll. To give a record, filed at 10 o’clock, the same effect as one filed at 9, would be to take away a right vested by the statute, which we think refers particularly to the hour and minute of filing. The precise time of delivering an execution to the Sheriff, is properly inquirable into. If he sells under the younger execution, at the expense of the elder, he is liable.(h) Formerly, it was not the practice of the Clerks to note the hour of filing the record, but of late this has been ° done, and we believe the same thing has been uniformly done at the several County Clerks’ offices, in the registry of mortgages. We are satisfied that the intention and spirit of the statute require a similar preference in the case before us. Some inconvenience may arise from the offices being kept at several different places ; but the Court will always require very clear proof of priority, before they will give a preference to one record over another, which is filed on the same day. We are of opinion that Douw’s judgment is entitled to preference.

Rule accordingly.

1 R. L. 501 s. 2.

id. 373, s. 6.

id. 501 2, s.6.

2 Burr. 950.

Com. Rep. 35. Ld. Raym. 251. Salk. 320.