cution to be levied on the same land on December 23, 1826. It does not appear from the statement of facts, or from the opinion of the court, whether execution had been issued upon the judgment in favor of the Lebanon Banking Company, and levied within the year upon other lands of the defendants than the tract, the proceeds of which were in dispute. I thereupon sent to the clerk of Warren county to ascertain whether the records in the common pleas or supreme court of the county showed whether such levy had been made, and he forwarded me the original papers in the case in the supreme court. The record upon which the certiorari was granted, and upon which the case was disposed of by the supreme court, contains an agreed statement of facts, from which it appears that execution had been issued upon the judgment in favor of the Lebanon Banking Company, and had been levied within the year upon other property than that in dispute, and that this levy was made before the levy of the execution upon the judgment in favor of the Bank of the United States had been levied upon the property in dispute. The court of common pleas ordered the proceeds to be paid to the assignees of the Lebanon Bank, on the supposition that they had the oldest and best lien; and the fourth assignment of error in the case in the supreme court was "because the execution issued on the judgment in favor of the Lebanon Bank, and on which the levy was made on said premises, the proceeds of which are the subject of dispute in this case, was irregular, it appearing that the property levied upon under a prior execution issued on said judgment remained undisposed of at the time of issuing of said execution on which the levy was made upon the premises sold belonging to said defendant Ferguson, and from the sale of which the money in dispute was made;" and the fifth assignment of error was "because the lien of the judgment of the Lebanon Bank on any other property than such as was then levied upon, if it was not absolutely discharged, and rendered void by said attachment, was lost, under the operation of the execution laws of 1822, in having the premises then levied upon offered for sale as the law directed, and the levy v.6,no.3-18

or appraisement on both of them set aside within six months, or such other time as that law required;" and the sixth assignment of error was "because the execution on the judg ment of the Lebanon Bank was not levied on the mortgaged premises which were sold, nor any other of the defendant Ferguson's property, within one year after the rendition of said judgment, according to the provisions of the laws of Ohio at that time in force, and particularly of the statute of February, 1824." From this it appears that the question of there being a levy upon other property was brought directly before the court, and the record, therefore, shows clearly that the question was considered, and it was the fact in the case upon which the decision was based. The supreme court in that case says that they decided the following points:

"First, to take a case out of the operation of the seventeenth section, (now 5415,) a levy must have been made on the property in question within a year after the rendition of the judgment. A levy on other property, though within the year, will not save the lien as to the property not levied upon. Second, if there are several judgments, and the property in question has not been levied upon within the year under either of them, they stand on an equal footing, and the judgment creditor who first takes out execution and causes a levy to be made will have the preference. Third, if execution on an older judgment has not been levied upon a particular piece of property within the year, and an execu tion upon a junior judgment has been levied upon that property within the year, the junior judgment must have the preference, although a levy may have been made on the same property under the older judgment before the levy was made on the junior judgment. The lien of the junior judgment on all the property not levied upon under the older judgment within the year must continue from one year from its date to the exclusion of the older judgment, provided the junior judg ment was rendered before the levy was made on the older judgment. A levy on the older judgment, though after the year, if made before the date of the junior judgment, will have the preference."

And this is in accordance with the decision of this court in the Bank of U.S. v. Longworth, 1 McLean, 35. In that case Justice McLean says: "Under the act of 1824, in the case of Shuee v. Ferguson, 3 Ham. (3 Ohio) 136, the supreme court decided that to continue the lien of the judgment upon any particular piece of real estate there must be a levy upon it within the year; that a levy upon property releases all other property not levied upon from the lien of the judgment, and that such property may be taken in execution on a junior judgment." Justice McLean further says: I confess I entertain some doubts as to the correctness of the decision, which in effect transfers the lien from the judgment to the levy of the execution. If the lien of the judgment be limited to the property levied upon, the judgment, after the levy, has no binding force upon other real property within the county. The policy of the act seems to require diligence by a judgment creditor, and prevents his holding a judgment over the property of the debtor so as to prevent other creditors from reaching it. But it would seem to me that the policy of the act, as well as its letter, would be carried into effect by issuing an execution on a judgment in good faith within the year, and pursuing it with diligence; that the lien of the judgment should not be limited to the property levied on, but should continue to cover all the real property of the defendant within the county until the money was made. The supreme court, however, has decided this question, and as their decision giving a construction to the statute forms the rule of decision in this court, I am disposed to acquiesce in the decision."

The principle of the latter cases applies to this. A levy was made under the judgment in favor of Brown county, within a year from its rendition, upon a part of the lands of the judgment debtor, but not upon the lands in controversy. The judgments in favor of James H. Dunn and R. C. Moore were rendered more than one year after that of Brown county. Under neither of these judgments was a levy made, but before the expiration of the year from their rendition the defendant judgment debtor was adjudicated a bankrupt, and his estate passed into the hands of an assignee; and the

rights of the parties must be determined as of the date of the adjudication of bankruptcy. Scott v. Dunn, 26 Ohio St. 63. At that date the judgment of Brown county, as to the prop erty in controversy, had lost its lien as against the judgments of Dunn and Moore, more than one year having elapsed since its rendition; but less than one year having elapsed since the rendition of the judgment in favor of James H. Dunn, it had not lost its lien as against the judgment in favor of R. C. Moore, and, there having been no levy under either of the latter judgments, they must be paid in the order of their rendition-first the judgment of James H. Dunn, and second that of R. C. Moore.

In re A. H. ENGLISH & Co., Bankrupts.

(District Court, W. D. Pennsylvania. March 12, 1881.)

1. STATUTES OF LIMITATION-REMEDY.

Statutes of limitation operate upon the remedy, not the title.

2. SAME ASSIGNEE IN BANKRUPTCY--REV. ST. § 5057.

An assignee in bankruptcy is not precluded from defending against a claim by the wife of the bankrupt for a copyright royalty upon the ground that the copyright was transferred to her by her husband in fraud of his creditors, because he did not, within the two years limited by section 5057 of the Revised Statutes, proceed by suit to recover the copyright or have the transfer set aside.

In Bankruptcy.

Sur rule on A. B. Hay, Esq., assignee, to show cause why a copyright royalty should not be paid to Mrs. Emily English, trustee of Lucius Osgood English. Knox & Reed, for Mrs. E. English.

A. B. Hay, for assignee.

ACHESON, D. J. Among the effects of the bankrupts which came into the hands of the assignee was a stock of school. books, which he sold pursuant to an order of court made upon his petition. No lien is specified in the petition or order other than the lien of one Hart for printing and binding part of the books. But just before the sale the assignee procured an

order of court authorizing him to pay Mrs. Lucius Osgood, the owner of one-half of the copyright of the books, a copyright royalty, and after the sale he paid her the same to the amount of $1,224.41.

On March 28, 1879, Mrs. Emily English, the wife of A. H. English, one of the bankrupts, as trustee of Lucius Osgood English, son of the bankrupt, presented her petition, claiming to be the owner of the other half of the copyright, and to be entitled to a like royalty to that paid Mrs. Osgood, and praying the court to order the assignee to pay the same to her. Thereupon a rule was granted upon the assignee to show cause why he should not make such payment. After answer to this rule, and argument, the court, on April 12, 1879, discharged the rule. The petition, however, was not dismissed, and is still pending.

On January 31, 1881, another petition of like character was presented to the court by Mrs. English, as trustee of Lucius Osgood English, and a rule was granted upon the assignee to show cause why an order should not be made directing him to pay the petitioner out of the proceeds of said sale the royalty claimed. To this petition and rule the assignee filed an answer. The petitioner set down the rule for hearing, and it was heard upon the petition and answer. I need scarcely say that in disposing of this rule the answer must be taken as true. In substance it alleges that A. H. English, who owned the one-half of the copyright now claimed by Mrs. English as the basis of her claim to royalty, transferred the same, without consideration, to his wife, the petitioner, in trust for his son Lucius, some months before his petition in bankruptcy was filed, at a time when he was in financial embarrassment-under an extension which he had procured from his creditors-and insolvent; that this transfer of the copyright was made to defraud his creditors; and that at the date of his adjudication as a bankrupt A. H. English, in point of fact, was the owner of the said one-half of the copyright.

If the allegations of the answer are true, it is very clear that the petitioner has no honest claim to the royalty she