Lemon against The Heirs of Jacob Staats; Graham against The Same; Van Rensselaer against The Same; Douw against The Same

Lemon against The Heirs of Jacob Staats. Graham against The Same. Van Rensselaer against The Same. Douw against The Same. Among sever-which first leC°filed takes prefereilAnd to determíne this, the court will inquire into the fractional parts of a day. And so, it seems, of mortgages ; i. e the one first registered takes preference: And of executions against goods, the one first delivered binds the property. And, it seems, that in all these cases, the court will notice the fractions of a day. If the sheriff levy and sell the goods on the execution last delivered, he is liable to Che plaintiff in the first. In the first cause, there was a judgment for the plaintiff, for $472,18 ; in the second, for $144,02; in the third, for $278,07 ; and in the 4th, for $645,80 ; all docketed in the Clerk’s office of this Court, at Albany, the 9th of August, *822—the 1st, 2d and 3d, eleven minutes before 9 A. M» and the last 15 minutes before 9 A. M. On the 2d October, 1823, certain premises, being all the pioperty of the defendants, were sold on afi.fa. upon each of the judgfflents,and bid off for ~l4OO, by the agent of the plaintiffs in the three first causes, the fi.fa. in each of which was issued and delivered to the Sheriff, Jlugust 9, 1823, at 7 A. M. on the same day, and before the fi. fa. in the last. Executions in all the causes had been delayed one year, on account of the infancy of the defendants, according to the 6 th section of the act for the relief of creditors against heirs and devisees, (1 R. L. 318.) A. Van Vechten, now moved for a rule, that the Sheriff pay a ratable proportion of the monies levied, to each of the plaintiffs. He said, the Court takes no notice of the fraclions of a day, nor does the statute, require the hour of the day to be noted by the Clerk. But if it does require this, the time must be within regular office hours, when alone the office is considered open. A contrary rule would lead to unseemly squabbling among creditors. In Waterman v. Haskin, the Court treat judgments fi'ed on the same day, as simultaneous. So also in ~darns v. Dyer. In these cases the Court, by very strong implication, reject fractions of a day. S. S. Lush, contra, contended that the record first filed should take preference. In the cases cited, the priority in the time of day was in doubt, and the Court, therefore, put the judgments upon equal footing. It is evident, from their remarks, that they would have considered the fractions of the day, had the proof plainly established a priority. Dome's judgment, being docketed five minutes before the others, gives him preference. The Court will always inquire into the fractions of a day, where it becomes material to the rights of the parties. Sess. 36 ch. 50, s. 2, 1 R. L. 501. 11 John. 230. 8 id. 347. [MAJORITY — Curia.] 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, speaks of the time, not the day, of filing the record. The Clerk is to note the time. The statute 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. 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, 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. 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.