
    Appeal by HENRY BETZ, JOSEPH HIESTER, LEWIS REES, and MICHAEL RAEFSNYDER, ISAAC M. YOUNG, and JACOB FRITZ.
    The issuing of a fieri facias within a year and a day, and a levy upon personal property, subject to former levies, or on personal property as per inventory annexed, or a return of nulla bona, does not beep alive the lien of a judgment beyond five years, from the return day of the term to which it is entered.
    Upon a transcript of the judgment of a justice of the peace, entered as a lien upon land, the five years within which a scire facias shall issue, to preserve the lien, must be computed from the first day of the term to which it is entered, and not from the actual date of the entry.
    This case came up by appeal from the decree of the court of Common Pleas of Berks county, distributing the proceeds of the sale by the sheriff, of the real estate of Samuel Krauser, Adam Krauser, and Daniel Krauser.
    
    The real estate was sold on the 2nd-November, 1829, and the sum of two thousand five hundred ar(d ninety-seven dollars and thirty-seven cents, being brought.into Sourt for distribution, the matter was referred, by consent,To three conf|nissioners, who made a report to the court, allowing the following judgments, the circumstances of which, gave rise to the points which are settled by this court.
    
      Jacob K. Boyer, for the use of h Henry■ Betz, I
    y. j John Krauser fy Samuel Era,user.)
    
    Of August term, 1821, No, 47, Judgment entered, 18th September, 182J. Real debt, $280 31,
    
      Fi. Fa. to August term, 1822., returned if Levied on personal property subject to prior executions.” Vend, expos, to January, 1823, returned “ unsold.” Fi.fa, post. vend, expos, to April term, 1827, returned “ Tarde venit.” April 14th, 1827, rule to show cause why the execution should not be set aside, and defendants let into a defence, May 18, 1827; rule made absolute, judgment to remain as security. Scire facias to August term, 1827, and. 1st June, 1829, judgment by report of arbitrators, for four hundred .and twenty-nine dollars and fourteen cents.
    
      Same plaintiffs. 1 v. > Same defendants. )
    
    Of April term, 1822, No. 89. Judgment entered, 8th February, 1822. Real debt $153,33.
    Alike proceedings were had upon this judgment as the first; the same returns were made thereto; the same rule entered; scire facias issued the same time, and on the 1st June, 1829, judgment by report of arbitrators, for two hundred and thirty-six dollars and eleven cents. To the allowance of these two judgments by the commissioners, the following exceptions were filed in the Common Pleas, by Jacob Hawk, a subsequent judgment creditor.
    1st. That the executions issued upon the said judgments were levied upon personal property, sufficient to satisfy the same.
    2nd. Because said judgments were not revived agreeably to the act of assembly, or the lien continued beyond five years, from the first return day of August term, 182J, under the then existing laws.
    The court of Common Pleas overruled the first exception, and sustained the second, from which Henry Betz, appealed.
    
      Mills and Reese, ) v. > John and Samuel Krauser. )
    Of January term, 1823, No. 10'. Transcript of a judgment from the docket of a justice, for $66 48.
    Entered, 11th January, 1823.
    
      Scire facias issued 7th January, 1828, to April term, 1828, upon which judgment was entered.
    There was another transcript of a judgment at the suit of the same plaintiffs, against the same defendants, entered at the same time, and depending upon the same circumstances. To the allowance of these two judgments, Jacob Hawk, also filed an exception,
    
      That the said judgments were not liens on the real estate sold, they not having been revived within five years, from the first return day of January term, 1823, agreeably to the act of assembly.
    The 6th January, was the return day of January term, 1823.
    This exception was sustained by the court of Common Pleas, and Lewis Rees, appealed.
    
      Joseph Hiester, Esq. \ v. > Adam, Samuel, and John Krauser. )
    
    Of November term, 1823, No. 112. Judgment entered, 10th Nov. 1823, for #400.
    
      FLfa. to January term, 1824, returned “levied on personal property, as per inventory annexed.” Vend, expos, to April term, 1824, returned “stayed by plaintiff” Als. vend, expos, to August term, 1824, returned*1 property sold to the amount of sixty-nine dollars and thirty-nine cents,” and this amount has been deducted from the interest and costs in the above case. Scire facias issued to January term, 1829. Exception was also filed by Jacob Hawk, to the allowance of this judgment.
    That the same had not been revived by scire facias within five years from the return day of the term to which it was' entered.
    This exception was also sustained by the court of Common Pleas, and Joseph Hiester, Esq. appealed.
    
      Michael Raefs?iyder, Isaac M.' ~ ' y Young, and Jacob Fritz, v. Samuel, John and Adam Krauser.J
    
    Of January term, 1824, No. 10. Judgment entered, 12 January, 1824, for #367 73.
    
      Fi.fa. to November term, 1824, returned “ nullabona.’’
    
    
      Jacob Hawk, \ v. > Samuel, John Sf Adam Krauser. )
    Of January term, 1824, No. 11, Judgment entered, 12th Janua-ry, 1824, for'#1560.
    
      Fi.fa. to' January term, 1824, levied on real estate, inquisition held, and the same condemned. Scire facias to January term, 1829, and judgment thereon.
    The commissioners reported that a balance of five hundred and ninety-one dollars and eighty-five cents, which remained after the payment of prior liens, should be divided rateably between these two judgments.
    To which Jacob Hawk excepted. That his judgment should be paid before any money should be appropriated to the judgment of Raefsnyder, Young and Fritz, which had lost its lien.
    This exception was sustained by the1 court of Common Pleas, and Raefsnyder, Young and Fritz, appealed.
    In this court, the appellants assigned as error, the opinion of the court in the several foregoing decrees.
    
      
      Baird, for appellants.
    There are two questions which arise out of this case. First, whether the issuing of a fi.fa. within a year after the entry of the judgment will keep alive its lien beyond the period of live years.
    And second. Whether upon a transcript of a judgment from the docket of a justice, the five years shall be computed from the first day of the term to which the judgment was entered, or from the actual date of its entry upon the docket
    The affirmance of the opinion of the court below, on the first point, will establish a doctrine differing from the received opinion of the bar, and uniform practice of all the courts in Pennsylvania, and which grew out of the judicial decisions of our own courts. The question first came before the court, in the case of Yomig v. Taylor, 2 Bin. 218, where it was ably argued, and received, the deliberate consideration of the court, and where it was held, that the issuing of a fi. fa. woulcLheep alive the lien of a judgment The next case is that of Lewis v. Smith, 2 Serg. f Rawle, 142, where the same doctrine is held, and predicated upon the construction, which practice had given to the .statute of Westminster the 2nd, and our own statute of the 4th April, 1798. In the case of Permock v. Hart, 8 Serg. ¿j- Rawle, 869, Young v. Taylor, is approved ; and in Pennoclc v. M’Kisson, 13 Serg. Sf Rawle, 144, the whole scope of the argument of Duncan Justice, recognizes the casesof Young v. Taylor, and Pennoclc v. Hart, as being sound law. The quere which is put in the case of Permock v. MKisson, is the quere of the reporters, and not authorized by the case itself: in the argument of that case, by Mr. Hepburn, who is a member of the bar of great experience and learning, and whose opinion in matters of practice will have weight, this position which we contend for is admitted. The case now at bar is a strong illustration of what we considered the settled law to be. In the act of the 26th March, 1827, Pam. laws, 129, we have the understanding of the legislature of what the practice was, for therein they provide that a scire facias shall issue, notwithstanding an execution had issued. If then, on this subject, the understanding and practice has been uniform and extensive, the evils of a different construction would be innumerable; this result the court will not produce, unless the evils of the present system are correspondingly great.
    When the act of 1798 was passed, the legislature had in view the practice of entering judgments upon warrants of attorney, and did not contemplate the case of transcripts, which at the passage of that law, there was no authority to enter on the county docket. ,But the 20th section of the act of 20th March, 1810, Purd. Dig, 454, which authorizes the entry of a transcript, provides that from the time of such entry, it shall bind the real estate of the defendant
    
      
      H. W.-Smith, for the appellee.-
    Prior to' the act of 4th April, 1798, judgments weré'a lien on real estate for an indefinite period ; by that act il ceases to be a lien, unless revived-by scire facias, within five years-from the return day of the term- to which it is entered. This act is as clear and comprehensive as it is positive in its terms: it was evidently intended for the benefit of purchasers, and subsequent- lien creditors.- The scire facias, post annum et diem, is given-by the statute of Westminster 2nd, and is intended for the benefit of the defendant in the judgment, that he may have an opportunity of showing that the debts paid, since the rendition of the judgment; so that there is no analogy between the two acts — the decisions, that have taken place under the one, cannot be applied to the other.
    The point now before the court, did not arise in the case of Young v. Taylor, there, there was no levy on personal property, the levy was on the two lots against which the lien was sought to be enforced, but further proceedings were directed to bring the matter before the court.- So far as this point was noticed, was only by a dictum of Judge Yeates, which was not called for, and which, as is said by senator Plait, in 9 Johns.- Rep. 415; and Huston, J. in 17 Serg. ¿f Rawle,- 292; and Gibson, C. J. in 7 Serg. <§• Rawle, 76, is always uncertain authority for what the law is.- There is a dictum of Judge Duncan, in 9 Serg. Sf Rawle, 311, that the mortgagee has the right to the actual possession of the land, one year after the last day of payment; but when the point came directly before the court, in 12 Serg. <f Rawle, 24Ó, it was decided that the mortgagee was entitled to recover before all the payments were due. But since' the case of Young v. Taylor j this court decided that so far as respects third persons, a levy on personal property discharges the lien of the judgment to the value of the property levied. Hunt v. Breading, 12 Serg. Rawle, 37. Dean v. Patton, 13 Serg. Sg Rawle, 341. Duncan v. Harris, 17 Serg. Rawle, 436. United States v. Stewart, M. S, case, Pittsburg, September, 1828. In Lewis v. Smith, the levy was on personal property, there was no question of lien as to land. If an execution be issued within a year and a day, an alias may issue at any time afterwards, without a scire facias, to obtain satisfaction of the debt, but not to continue the lien of the judgment: the existence of the debt and its lien are not inseparable ; the lien may be waived, and the debt still continue. The Bank of Pennsylvania v. Winger, 1 Rawle, 295.
    The case of Pennock v. Hart, has been much shaken in its authority, even by the present Chief Justice, who delivered that opinion of the court, for he has said that he is less confident of the soundness of that decision, than when it was pronounced, and in the Commonwealth v. Canard, 1 Rawle, 253, Justice Smith, savs, 4' indeed very few lawyers foresaw, or expected the decision of Pennock v. Hart.” It is restricted in its application, in Black v.. Hobson, 11 Serg. Sf Rawle, 94; and in Bombay v. Boyer, 14 Serg. &• Rawle, 253. In the Commonwealth v. M’Kisson, the Hen is confined to the particular lands levied on ; and there the court seemed reluctant to go even that far. Chahoon v. Hollenback, 16 Serg. Sf Rawle, 425, is the last case on the subject, and where Huston, J. reviews all the prior cases, and decides against the lien now asked for.
    The object of an execution is satisfaction of the debt, not security-for it; and whenever an execution creates a lien, it is on the pro-perty specifically levied, which is necessary to render the process effectual, until satisfaction is obtained. A levy on a particular tract of land, is notice that the creditor has resorted to it for payment, and a lien is the consequence until it is obtained; but a levy on personal property, or a return of nulla bona, can give no such notice : the former may induce third persons to believe that the judgment creditor has resorted to the personal property, and received satisfaction; and the latter is but notice, that no satisfaction was obtained, which sufficiently appears by the unsatisfied judgment on the docket. Mills and Rees’s judgments, although transcripts from the docket of a justice are entered for the purpose of lien on the -real estate, and are necessarily liable to all the legal consequences incident to the lien of a judgment under the act of 4th April, 1798.
   The opinion of the court was delivered by

Smith, J.

(His Honour stated fully the facts of the case.) The questions, which are to be decided here are. 1 Whether the lien of a judgment, is continued beyond five years, from the first return day of the term of which it is entered without a scirefacias to revive the same, by a fieri facias issued within a year and a day, and returned, levied on personal property, subject to prior executions, or, levied on personal property, as per inventory annexed, or returned, “nulla bona;” and 2ndly. Whether the transcript of a judgment of a justice of the peace, filed in the court of Common Pleas, continues the lien five years from the day on which it was actually entered, or five years from the first return day of the term of which it is entered, according to the provisions of the act of the 4th of April, 1798. With regard to this Jast question, we. find it impossible to draw a distinction between a judgment entered by confession, or on verdict, and a judgment entered from a transcript of a justice. It was long ago decided, that judgments obtained before justices of the peace, when filed in the prothonotary’s office, are on the same footing with judgments in court. Scott v. Ramsey, 1 Bin. 221. The words of the act of 1798, section 2, are, that “ no judgment hereafter entered in any court of record within this commonwealth, shall continue a lien on the real estate of the person against whom such judgment may be entered, during a longer term than five years from the first return day of the term of which such judgment may be so entered, unless the person who may obtain such judgment, or his legal representatives, or other persons interested, shall, within the said term of five years, sue out a writ of scire facias, to revive the same.” We have no doubt that the case of a transcript, is embraced both by the language and spirit of this provision, and we are unanimously of opinion, that the court below was correct in sustaining the exception to the allow anee of Rees and Mills’ judgments, as existing liens, five years from the first return day of the January term, 1823, having expired, when the scire facias was issued upon them respectively, though only by a single day. The other question does not admit of so easy a solution, nor are the members of this court unanimous respecting it. I may, however, state that four of us, concur in the opinion, that where the fierifacias is returned “nulla bond,” the lien is not thereby continued on the land; and that a majority of the court consider that the lien is not continued by a fieri fxcias, returned levied on personal property, as per inventory annexed.

The act of 1798, limiting the time during which a judgment shall be a lien on real estate, &c. is imperative in its injunction, that no-judgment shall continue a lien, unless a writ of scire facias be sued out within the time therein prescribed, to revive the same. It is true, that this excepting clause, has been extended by construction to the case of e,fieri facias levied on lands, and also, to the case of a cesset executio, making the five years during which the scire facias may be issued, to commence at the expiration of the stay. There is no disposition In this court, to carry the construction beyond the decisions in the cases of Young v. Taylor, 2 Bin. 218. Pennock v. M’Kisson, 13 Serg. & Rawle, 144; and Pennock v. Hart, 8 Serg. & Rawle, 319. In the last mentioned case, the stay of execution was entered upon the record, and this entry has been decided, in subsequent cases to be essential to the extension of the period within which the plaintiff may issue a scire facias to revive his lien. Every effort to induce us to carry the construction beyond that point, has proved unavailing, and we have held, that no agreement between the parties for a stay, will be valid, as to third 'persons, unless it be placed upon the record at the time of entering the judgment. Black v. Dobson, 11 Serg. & Rawle, 94. Bombay v. Boyer, 14 Serg. & Rawle, 253.

In Young v. Taylor, the fieri facias was levied on goods and land-, •the very land in controversy, on which was held an Inquisition, that condemned it. Th e fieri facias thus levied, with the inquisition and condemnation, Was considered, in point of notice of the creditor? pretensions, to be equivalent to the scire facias mentioned in the, act of the 4th of April, 1798, and to supersede that writ. Even the letter qf this case affords no support to the errors assigned by the appellants, whose writs offieri facias, were levied on personal property alone; and if we regard its spirit and reason, which constitute the real authority of every precedent, we shall be satisfied that it cannot contribute in the least to sustain these appeals. The act of assembly in question, was passed, for the safety of purchasers of real estate. The scire facias within five years was intended as notice, that the judgment creditor still looked to the land as security for his debt. Iiis omission to sue it out affected him in no other way, than by relieving the land from the lien of his judgment. The purchaser, where a scire facias has been duly sued out, is fully notified of the incumbrance, and of the creditor’s intention to regard the land as the fund out of which he expects to be paid. Buying with notice, he cannot complain. “ But,” said Judge Yeates, in 2 Bin. 229, “ It will not be denied, that the plaintiff taking out a fieri facias, levying on goods and lands of the defendant, and condemning the lands by an inquest, are matters of notoriety, and in point of notice of the creditor’s pretensions, tantamount to a scire facias. Such I take it, has been the construction pf this section of the act.” It was the notoriety of these proceedings upon the judgment affecting the lands, that was thought to supply the purpose of the scirefacias, in giving notice of the plaintiff’s intention not to relinquish his lien upon them. But how can we infer such an intention from afieri facias, levied upon personal property only? In Hunt v. Breading, 12 Serg. & Rawle, 37, it wrns decided, that a judgment creditor, who has seized the goods of his debtor in execution, cannot discharge them, and leave his judgment in force as to the land. See also, Dean v. Patton, 13 Serg. & Rawle, 341, and Duncan v. Harris, 17 Serg. & Rawle, 436. A levy on personal property, cannot be considered as notice to a purchaser, that the creditor means to rely on his lien upon the debtor’s lands. It is an indication of a different intention. The fieri facias itself is no lien upon the land, until it is seized in execution by virtue of the writ.' It is a lien upon the defendant’s goods from the time of its delivery to the sheriff, and where goods of sufficient value are actually seized in execution, the debt is extinguished, and the judgment satisfied. In the fact of levying on personal property, what is there, of actual notoriety, calculated to supply the notice by scire facias of the creditors purpose to renew or revive his lien upon the defendant’s land ? Certainly nothing. -If then, we go to the record, we find an entry of & fierifacias issued, and returned, “ levied on personal property.” Is there any thing in this, that really intimates the creditor’s design to maintain his lien upon the land ? On the contrary,' the entry shows that the creditor has resorted to the defendant’s goods, for the satisfaction of his debt; and ihp legal consequence is, that he is not at liberty to give them up;, and-proceed against the land. In the case of Pennock v. M’Kisson, 13 Serg. & Rawle, 144, the decision, was, “barely on the-effect of a-levy on particular lands, preserving the lien on the land'levied,”' without a scire facias to revive; and it was decided on the authority of Young v. Taylor, that it was sufficient for that purpose; though, Judge Duncan, who delivered the opinion of the court, declared,, that if the matter were r-es integra, he would have given.-adifferr ent decision.

Upon the present question, I consider this court, as untrammeled •by former decisions. We have the plain and unequivocal enactment of the legislature for our guide, without any reason to suppose,, that if they had foreseen the case now under consideration, they would have employed one word more or less, in order to bring it within the exception to their limitation. There is no instance in which afieri facias levied merely upon personal property, has been held to be within that exception; nor can the decisions or practice under the statute of Westminster 2d, in my opinion, warrant such a construction, in relation to a fieri facias thus executed. The ■object and character of that statute, and of our act of the 4th of-' April, 1798, are indeed so different, that I am at a loss to discover* -the propriety of reasoning from one to the other.

In fine, wc .think, that as no scire facias was sued out, according to the second section of the act of the fourth of April, 1798, to revive the judgments of Jacob IC Boyer, for the use of Henry Betz, and the judgment of Joseph Hiester, Esquire, within five years from the first return day of the term, of which they were respectively entered, they did not continue a lien on the real estate oí' the defendants therein named beyond that period, notwithstanding the fieri facias issued upon them, and levied on the personal property of these defendants. The appellee, Jacob Hawk had issued a writ of scire facias, to continue his lien, so that in fact, the case was between those who had complied with the law, and those who had disregarded it.

Gibson, C. J.

No man is more ready than I, to admit the fallacy of the construction in Young v. Taylor, but as it has laid the foundation of a practice, extensively adopted, I think that the germ of jnuch evil is discernible in the present departure from it. The importance of that case is not derived from the point directly decided, but from the breadth of a principle asserted in it, that “ no change was intended in the mode of keeping judgments alive, by issuing an execution within the year and day, superseding the necessity of issuing a scire facias under the statute of Westminster the second.” Since that statute, the judgménffwas kept alive by the issuing and continuance of an execution, without regard to the circumstances of a levy, which was considered to he immaterial; and I feel confident that on the authority of this dictum, the same practice has prevailed in many parts of the state, as 'uninterruptedly since the act of assembly, as it did before. To follow it to the point at which it has been arrested by the legislature, would produce nó material inconvenience; for although little accordant with the letter or spirit of the act, I am not aware that it has ever produced injustice : what the consequences of overturning it maybe retrospectively, no man can foresee. Purchasers have reposed on it for twenty years; and to deprive them of a title founded in a practice repeatedly recognized by judicial decision, ought to require the presence of an overruling mischief, which, it seems to me, does not exist. I am, therefore, averse to any change, particularly- in what seems to me to have become a rule of property; and I am happy to say my brother Rogers, is of the same opinion.

The judgment and decrees of the court of Common Pleas, are affirmed.

Rogers, J. — Concurred with the Chief Justice.  