This question arises between execution creditors against the common debtor, where the judgments were recovered at the same term of the court. Has the judgment first entered a priority of lien over one of a subsequent date? In the case of Johnson vs. Ball, (1 Yerg. Rep. 291) the subject of lien underwent elaborate discussion. There the court held, that where executions were levied on the same property issuing from different courts, the oldest judgment must be first satisfied. It is there also holden, that executions do relate to their teste, as in England before the passage of the 29 Car. II, save some slight alterations by statute. The position is undoubtedly true, and. so is the case of Preston vs. Surgoine, Peck’s Rep. 80. The statute of 29 Car. goes much further to protect the purchaser from the debtor than ours, as to the goods, but it was made for the protection of purchasers. 2 Bac. Ab. Execution I. Before, the day of the rendition of the judgment could not be shown, and many times (says the preamble to the statute) judgments in the King’s court at Westminster, do relate to the first day of the term whereof they are entered, and bind the defendant’s lands from that time, although, in truth, entered and signed in vacation, after said term, whereby purchasers find themselves aggrieved. The term was but one day in legal justice. This fiction was adopted to attain the ends of justice. Our writ of fieri facias dates on its face from the first day of the term, recognizing the fiction, which exists in force, save in so far as exceptions are made to it by statutes. By common law, then, the judgment bound the lands from the first day of the term in which it purported to have been rendered, as between the living plaintiff and defendant. Has any statute of' North Carolina or Tennessee altered this common law rule? I think not; and that as to the plaintiffs against the same defendant, recovering judgments at the same term, though on different days thereof, the term must, still, for the obtainment of equal justice among them,, be taken as only one day.

*368If the rule adopted m the county court, of ordering the executions to be satisfied rateably, has ever been vi-dated by the sheriffs or courts, I have no knowledge of it. And such was, I know, the advice of many of the profession at Nashville ten or twelve years since, in cases of magnitude and much interest to the parties concerned; who acted accordingly and divided the money. The fiction means nothing more nor less than that the parties have been equally vigilant in a case like the present; and that, when the money is returned into court by the sheriff, if there be not enough to pay the whole of the judgments by force of which it was collected, the court doing equity among its suitors, makes them abate rateably. Courts of law, as well as of equity, do not only compel suitors in court to do equity among other, by setting off mutual judgments, and entering up satisfaction and the like, but they compel their officers to do justice to each other, especially in matters of fees. Baker vs. Dacie, 6 Vesev, 688: Mar. and Yerg. 171, and authorities cited. When the executions issue from different courts, as in Johnson vs. Ball, then a positive rule must be adopted, because the one court has no control, or ráther efficient means of control, over the-suitors of the other. The creditors are not all before the same court, so that it can compel them to do justice among other; nor can it judge of the vigilance by the creditors.in obtaining their judgments and issuing their executions. This subject- is infinitely subtle and complex in its consequences when different jurisdictions conflict; but this is a new case, growing out of the nature of our institutions, and their dissimilarity from those of Great Britain, where no rule is found to apply to such a case; but in the present instance we find a rule.

There is no aspect in which the question of the lien of a judgment can be presented, that is not subject to objection, if matters of convenience alone are looked to. The judgment of a county court is of just *369as much validity as orle rendered by this court; while that court acts within its jurisdiction, and parties rest the judgment there, it is equally binding and final, and the. lien just as effectual as that of any other tribunal in the State.

It is said to appear inconsistent that the judgment of a county court rendered where the sitting had been but of á few days duration, should, by the’teste of the execution, loose the force of its'lien by reason that a judgment of this court sitting three months, had overreached it by relation to the first day of the term, and that in fact the estate might be seized and sold, subject to be defeated by the lien of the younger judgment rendered here.

There is no greater evil in this, than those that may be made to arise by even the voluntary act of a defendant, so far as creditors are concerned. A continuance, suffering judgment by default, a demurrer, reasons in arrest of judgment, appeal or writ of error, may either of them be resorted to, and give one plaintiff an advantage over another. It is not .vigilance simply that gives the advantage; circumstances over which the court has no control, may, and often does produce it; and courts must be content with the uniformity which will result from human institutions, at best imperfect, for every case of seeming hardship cannot be remedied.

Take for instance, the case first put, and it will form no ground for abandoning the rule which gives the lien from the teste. It is true, as stated, that this court sits for months, some of the county courts for days only; but the order of things is reversed when we get to Rey-noldsburgh. There the court at some of its sessions sits but one day; while the county**court at Nashville, and at other places, sits one month. In such cases, the justices of the county court would feel indignant, if by resorting to the very day the judgment was rendered, the ephemeral session (in a Cyprus' Swamp, without lawyers, books or courthouse,) should take precedence, and de~ *370feal the judgment of their lengthy term. So too of the circuit court at Nashville, which sits perhaps as long as the supreme court at the same place, and much longer than that court at Joneshorough, Knoxville or Sparta. While ever we consider that there cannot be uniformity and entire equality in the rules touching this subject, it is useless to depart from the principle which gives the lien from the teste; indeed, to my mind the argument for allowing it in the cases brought into this court, is much the most reasonable; the delay which is usually incident upon the writ of error in a court thronged with business, argues powerfully in favor of the creditor here; he has been delayed perhaps for years, and when he gets his judgment affirmed, it does not relate to the proceédings of the inferior court, but he has to receive his judgment at our hands; and-it is but-reasonable we should give it to him with every allowance in his favor the law will tolerate,. Considering, therefore, that there are county courts, circuit and chancery courts, as well as this court, all issuing executions; that the length of the terms of these are various in the different sections of the State, the rule is the most safe which allows the lien as proposed in this opinion, and certainly it is no objection that it savors of fiction; for the courts being open, the times of sitting fixed by law, every man is supposed to know what is doing in these tribunals. If a purchaser at execution sale desires to be informed of the condition of causes and judgments, either rendered or anticipated, the means of knowing lie before him; and when the law of lien is permanently established, it is .improbable that he will bid at much risk; and this is one of the reasons of the maxim, caveat emptor, and why he cannot get his money back if he commit an error in purchasing.

But, aside from reasoning, how is the law? It is required by the constitution, that writs (executions) shall bear teste. This clause had meaning when inserted in *371the constitution, and while we keep m mind that there ■. , e , . , . , x . , , was always a mode of thinking and treating the term as but one day, it was sensible to insert it. To many purposes our courts are always open. The issuing of process, and superceding it when improperly issued, are acts of every day’s occurrence, to prove that even the execution, which is said to be the life of the law, are under the control of the judge, though no court be sitting.

When the court .did set, judgments were not as at present entered every day, and. the minutes signed; journals of the proceedings were kept, it is true, during the whole term, and it may be dates were preserved; but it is equally true, they were then, as the minutes are now, under the control of the court while in session; and then, as at this day, entries were not made always on the very day the order was given for a judgment.

Judge Haywood, justly esteemed as profoundly read in the common law, had grown up with the practice in North Carolina, and has generally assisted in making the practice for us in this country, has given his views upon this subject in the case of Preston vs. Surguoin, Peck’s Rep. 80. There is no statute inconsistent with the common law rule, and certainly no good reason can be perceived for establishing by construction, a rule which shall conflict with those hitherto followed.

Cases have arisen where it became necessary to ascertain the particular day of the term, but that necessity arose from the nature of the transaction. As all our courts have a concurrent jurisdiction in the probate of deeds, it was found in Carmack’s case, that unless we could reach the day of probate, injustice would be done by the judgment (which was really younger) overreaching the deed, if such judgment be permitted to have effect from the first day of the term. The necessity here was obvious, but it did not change the rule; in fact it admits and recognizes it, for in the opinion it is at least intimated, if not ex*372pressed, that the fiction may be disregarded where jus- , , , tioe requires it.

Being satisfied with the case of Preston vs. Surguoin, and knowing of no case where the court has come to a different result, let a division of the fund _in the hands of the sheriff, according to this opinion, he made rateably among the creditors.

(dissented.) At the October term, 1831, of the county court of Davidson, the plaintiffs obtained judgments against the heirs of B. H. Lanier. These were rendered on the 18th day of the month, and on the 22d, and during the same term, several other judgments were obtained against the same defendant. Executions on all the judgments came to the hands of the sheriff the same day, were all on the same day levied on the land, which was sold by virtue of them all. The sheriff made a special return of these facts, and the plaintiffs moved the court to direct the application of the money to the satisfaction of their executions in preference to those obtained on the 22d, The court refused to do this, but directed the money to be applied in equal proportions to all the judgments.

The question now is, whether those judgments which were obtained on the 18th are to be preferred. In the case of Hickman vs. Murfree, (Mar. and Yer. Rep. 26,) this court decided that a judgment was a lien on the defendant’s lands. In Murfree’s lessee vs. Carmack and Williams, determined at the present term, the court decide that a judgment does not relate to the first day of the term, but is limited to the day of the term on which it is entered up. I am satisfied that decision was correct. Why resort to the common law fiction, that the judgment relates to the first day of the term, when the reason of it has ceased. Here, our records speak of the proceedings of .the court on each day; of its adjournment to a specified hour the next morning, and of its meeting at that *373hour. The minutes, too, of the proceedings of each day, are signed by the court on the succeeding morning, after having been read and corrected.

What would he the consequence of this doctrine of relation, were the courts to adhere to this fiction of the common law? The term of this court commenced the first Monday of March, and will continue until the last of May. Many of the county courts continue in session only a few days. Suppose one of these courts to sit on the 2d Monday of March, and render a judgment against a debtor. The execution may issue, and the land be sold before the rise of this court. And yet, if this doctrine of relation be law here, a judgment may be pronounced the last day of this term in favor of another plaintiff against the same defendant, and by relating to the first day of the term, would be á lien on the land precedent to that by virtue of which it may have been sold. Should the land be re-sold by yirtue of the execution founded on such judgment, how is the purchaser to get back his money? The land is purchased when no lien exists upon it, and the purchaser acquires a good title. Shall he be deprived of it by a fiction of law? Surely not. But in the case supposed, if the land were not sold until after the rise of this court, and both executions are in the hands of the sheriff at the same time, would it not be absurd that a judgment obtained the 30th of May, should take precedence in satisfaction to one obtained the 10th of March? And yet such would be the inevitable consequence, if a judgment relates to the first day of the term. None of these absurdities exist in England, and it may be well enough said there, that the fiction was resorted to for the ends of justice. But here, where we have one hundred and fifty courts in the State, whose judgnen^-arsssS^ien on all the lands of the party against^who^TfeitLt^^ wherever those lands may be sitimt£dj^>tfie doctrine is wholly unsuited, and if adopted, wov cious in its consequences. As between *374be well enough; but as it relates to others, whether pur- , . , ,. . . £ chasers or judgment creditors, it is unreasonable. If a judgment does not relate to the first day of the term, the question is settled. It there is a lien from the time it is rendered, and must have precedence of one rendered on a later day in the same term of the same court, the court would have no power after the land has been sold, to order an equal distribution of the money among creditors, whose judgments were obtained on different days. The precedence of lien, confers a prior right, which the court cannot take away.

I therefore think the judgment should be reversed, and that the sheriff pay the money in his hands in satisfaction of the judgments obtained the 18th of the month, and distribute the balance among those whose judgments were obtained the 22d, and that the defendant in error pay the costs.

delivered no opinion in this cause, because of his absence during part of the argument.

Judgment affirmed.