thus be a fraud upon them. Indeed, it would be utterly incompatible with the duties of the broker to act for both under such circumstances, since, for all real purposes, he would be both buyer and seller, and the law will not tolerate any man in becoming both buyer and seller, where the interests of third persons are concerned:" Story on Agency, 31, 32. And again, he says, reasoning upon the inability of an agent to become a purchaser: "For the like reason, an agent of the seller can not become the agent of the purchaser in the same transaction:" Id. 203. See also Paley on Agency, by Lloyd, 33, note 3; Wright v. Dannah, 2 Camp. 203; Dixon v. Broomfield, 2 Chit. 205. These principles apply to sheriffs, and the policy of the disability in their case is very manifest. The opinion of the presiding judge was a general one, that a sheriff could, at his own sale, become the agent of an absent purchaser. It therefore asserted his power to act as a discretionary agent, to buy at his own sale. From the facts of the case, we conclude that the court meant to go that length; and it is that opinion that we reverse. Whether the sheriff could not act as the agent of a purchaser, to make a definite bid, or otherwise, where no discretionary powers are conferred, are not questions made by this record.

The court also instructed the jury, that a person could assume an agency, and if his acts are ratified, they will become valid. This is true of all who can, by law, become an agent. It is generally true. The court, however, applied the rule to the sheriff in this case. As to him it is not true. He can not become, as I have attempted to show, an agent for a purchaser et his own sale. If he can not act as agent by appointment, he can not be made an agent by ratification. This requires no argument and no illustration; and in this particular, we think the court erred.

Since the sale which gave rise to this controversy, the legislature has passed an act prohibiting a sheriff from becoming a purchaser at his own sale, making the sale void and subjecting him to punishment if he violates the law. This act shows the view of the general assembly as to the policy of such purchases.

The presiding judge decided, that a sale of property under execution by a junior fi. fa. defeated the lien of an older judgment upon the same property; which decision is also excepted to. If this question were now made for the first time, in this state, we should be compelled to hold differently, but inasmuch as for many years the decisions of our courts have been in ac

cordance with the ruling of the court below, we affirm the decision. By statute in Georgia, judgments bind all the property of the defendant from their date. That judgment which is prior in time is superior in lien. This is true of all liens. Liens can only be defeated by express waiver, or by some act of the party which amounts to a waiver.

"The principle," say the supreme court of the United States, through Chief Justice Marshall, in Rankin v. Scott, 12 Wheat. 177, "is believed to be universal, that a prior lien gives A prior claim, which is entitled to prior satisfaction out of the subject which it binds, unless the lien be intrinsically defective, or be displaced by some act of the party holding it, which will postpone him, in a court of law or equity, to a subsequent claimant. The single circumstance of not proceeding upon it until a subsequent lien has been obtained and carried into execution, has never been considered such an act." The lien of a judgment is statutory, and is as strong as the lien of a mortgage. A junior mortgage, foreclosed, does not, by a sale of the mortgaged property, displace the lien of an older mortgage. In that case, the property is sold subject to the senior lien, and the purchaser buys with that understanding. mortgage of older date is recorded, and that is notice to all the world. Why should the rule be different in case of judgments? They are founded on proceedings of record-they are themselves recorded. A consent to the sale by the older judgment creditor would unquestionably defeat its lien. So, also, if it comes in (as it may do) and receives the money raised by the sale, it could not afterwards sell the property: Commercial Bank v. Yazoo County, 6 How. (Miss.) 530 [38 Am. Dec. 447]; Goode v. Mayson, Id. 543; Commercial Bank v. Helderburn, Id. 536; Andrews v. Doe, Id. 554 [38 Am. Dec. 450]; Bibb v. Jones, 7 Id. 397; Den ex dem. Shrew v. Jones, 2 McLean, 78; Utter v. Walker, Wright (Ohio), 46; Jackson v. Mills, 13 Johns. 463; Jackson v. Benedict, Id. 533; Rankin v. Scott, 12 Wheat. 177.

But this is not an open question here. The decision of the judge in this case has been the law of our courts for years. Under that law, the title to a vast amount of property has passed. The legislature has acquiesced in it. When a statute has, by long series of decisions, received a construction which the people have acted upon, and in which the legislature has acquiesced, we do not feel at liberty, not feeling it to be an imperious obligation, to disturb that construction-more especially in cases where, as in this, serious injury would result to citizens

who have rights originating under that construction. We leave the error for the consideration of the legislature. We recollect no instance, in this state, in which the rule has been settled different from the decision in this case. In the eastern circuit, which is the oldest in this state, upon the authority of Judge Law, the decisions have been to this effect: Forsyth v. Marbury, R. M. Charlt. 327.

Let the judgment be reversed.

LIEN OF SENIOR JUDGMENT IS LOST BY SALE UNDER JUNIOR Judgment AND EXECUTION, and the senior judgment can only come in and claim the fund arising from sale under the junior fi. fa. The principal case is cited on this point, as an authority establishing the rule in Georgia, in Dowdell v. Neal, 10 Ga. 158; Sanders v. McAffee, 42 Id. 255; Tarver v. Elison, 57 Id. 57. When the older judgment claims the fund, it is to receive priority in payment, citing the principal case: Lowry v. Parsons, 52 Id. 358. Sale of property under a ju nior fi. fa., contrary to the rule in Georgia, does not, according to the majority of authority, divest the lien of the senior judgments: See Commercial Bank v. Yazoo County, 38 Am. Dec. 447, and note; Andrews v. Doe, 38 Id. 450, and note; Freeman on Executions, sec. 96; though there is authority to the effect that the senior judgment lien, under such circumstances, may be lost by laches: See Campbell v. Spence, 39 Am. Dec. 301; Mitchie v. Planters' Bank, 34 Id. 112, and cases cited in the note thereto.

PURCHASE BY SHERIFF, EVEN AS AGENT, AT HIS OWN SALE IS VOID. The principal case is relied upon as establishing this, in Carr v. Houser, 46 Ga. 479; Flury v. Grimes, 52 Id. 343; Mayor etc. of Macon v. Huff, 60 Id. 228. A purchase by a deputy sheriff at a sale by his co-deputy barely escapes being illegal, and will be held void if there are any indications of unfairness: Worland v. Kimberlin, 44 Am. Dec. 785. A sheriff can not sell where he has an interest in the judgment: Collais v. McLeod, 49 Id. 376.

PURCHASE BY TRUSTEES AT THEIR OWN SALE: See note to Worthy v. Johnson, ante, 399.

RATIFICATION OF ILLEGAL ACT makes it none the less illegal and void. The principal case is cited as authority on this point in Newsom v. Hart, 14 Mich. 237.

CASES

IN THE

SUPREME COURT

OF

ILLINOIS.

NEW HOPE DELAWARE BRIDGE Co. v. PERRY ET AL.

[11 ILLINOIS, 467.]

HCIDER OF BANK NOTE PAYABLE TO BEARER, OR TO PARTICULAR PERSON or bearer, can maintain an action thereon against the corporation that issued it.

STATUTE OF ANNE MAKING PROMISSORY NOTES TRANSFERABLE in the same manner as bills of exchange, was never in force in Illinois.

BANK NOTES WERE ALWAYS NEGOTIABLE AT COMMON LAW, and are not within the provisions of the Illinois statute making promissory notes, and certain other instruments in writing, transferable by indorsement. POSSESSION OF BANK NOTES IS PRIMA FACIE EVIDENCE OF TITLE in the holder.

ACTION AGAINST BANK ON ITS NOTES CAN NOT BE DEFEATED BY PLEA that those to whom the notes were issued have not complied with the terms of an agreement then made by them, to so use the notes as to best prevent their return to the bank for redemption. The title to the notes vested in the parties to whom they were issued, before the time when the stipulations of the contract were to be performed, and the continu. ance of their title depended in no degree upon the performance of those stipulations.

IN ACTION ON NOTE MADE PAYABLE AT PARTICULAR PLACE, demand of payment at that place need not be averred or proved, but readiness to pay at the time and place may be pleaded in bar of damages and costs. ACTION brought by the defendants in error to recover of the plaintiffs in error the amount of certain bank bills issued by the latter. Judgment was rendered for the plaintiffs below. The other facts are stated in the opinion.

Arnold and Lay, for the plaintiffs in error.

Larned and Bentley, for the defendants in error.

443

By Court, TREAT, C. J. The principal question in this case is, whether the holder of bank notes, made payable to bearer, or to a particular person or bearer, can maintain an action on the notes against the corporation issuing them. The statute provides, that "all promissory notes, bonds, due bills, and other instruments in writing, made or to be made by any person or persons, body politic or corporate, whereby such person or persons promise or agree to pay any sum of money or articles of personal property, or any sum of money in personal property, or acknowledge any sum of money or article. of personal property to be due to any other person or persons, shall be taken to be due and payable; and the sum of money or article of personal property therein mentioned shall, by virtue thereof, be due and payable to the person or persons to whom the said note, bond, bill, or other instrument in writing is made. Any such note, bond, bill, or other instrument in writing, made payable to any person or persons, shall be assignable, by indorsement thereon, under the hand or hands of such person or persons, and of his, her, or their assignee or assignees, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee or assignees successively:" R. S., c. 73, secs. 3, 4. It was decided by this court, in the case of Hilborn v. Artus, 3 Scam. 344, that, under this statute, a promissory note, payable to a particular person or bearer, could not be transferred by delivery merely, so as to authorize the holder to sue thereon in his own name; in other words, that an action on the note could only be main tained in the name of the payee, or the person to whom it haɑ been transferred by indorsement. The note in that case was one made in the ordinary course of business between individuals. It is contended that bank notes are equally within the provisions of the statute, and consequently subject to the decision in Hilborn v. Artus, supra. We purposely forbear, at this time, any discussion respecting that decision, as the result of this case does not at all depend on its correctness. The statute of 3 and 4 Anne, c. 9, which made promissory notes transferable in the same manner as bills of exchange were, by the custom of merchants, was never in force in this state: R. S., c. 62, sec. 1. Hence the necessity of our statute, in order to render promissory notes negotiable. Without the aid of legislation, they could not be so tranferred as to vest the legal interest in the assignee. The object of the statute was to put promissory notes, as respects their negotiability, on the footing of bills of ex