
    Young against Taylor and Barron.
    Philadelphia, Saturday, December 30.
    If a plaintiff up'on^hed'eféndant’s lands, him1 in'execution upon a ca. may be set aside at the election of the defendant; but if he submits to the ca. sa. and obtains a disci large from it {aw^Uien^he111* Ji.fa. and all proceedings under it are |one; and if the plaintiff sues out a ’venditioni exponas and sells, the court will not permit the sheriff to acknowledge a deed to the purchaser
    the defendant are aliened by him before the plaintiff’s judgment or execution, the plaintiff is not obliged to take a scire facias against the terre-tenants, before he can have execution in the hands of the alienee.
    Y N this case, the sheriff having requested the court to take ^ ^tis acknowledgment of a deed to the plaintiff for certain lots sold to him under his execution against the defendants, dle court, upon the motion of Binney for J. G. Wachsmuth and others, and upon a statement of the facts hereafter mentioned, which appeared of record, refused to receive the acknowledgment until counsel should be heard in opposition , , „ i t0 the deecU
    facts would shew a privity between Taylor and the persons who opposed the acknowledgment, the court directed the . , , , evidence to be opened. The case being now called up for a hearing, S. Levy for the plaintiff, objected to the interposition of counsel except on behalf of the defendants; but it being answered, that the
    On both sides the material facts were these: On the 20th Qjp pprn i^92, John M. Taylor, one of the defendants, was seised of two lots in the city of Philadelphia, (the property sold to Young) which on that day he conveyed to Mordecai Lewis and others in trust for his creditors. On the 10th 'l0r and wife joined in a conveyance to J. G. Wachsmuth in July 1792, Lewis and others assigned to Joseph Ball upon the same trusts; and on the 8th October 1800, Ball and Tay
      consideration of four thousand dollars. The conveyances in trust were never proved or acknowledged until the loth March 1798, and on the 16th they were duly recorded. The conveyance to Wachsmuth was acknowledged the day it bore date, and was recorded the 22d January 1803.
    
      An execution within a year and a day, continues the lien of a judgment, without resorting to a scire facias under the act of 4th of April 1798.
    Whether a sale of the defendant’s lands under a younger judgment, affects the lienbf aij older one?
    
      On the 11th December 1797, a judgment was confessed in this court by Taylor in favour of Gabriel Furman, for thirty thousand dollars the damages laid in the declaration, to stand as a security for what should be recovered at the trial; and on the 16th March 1798 the debt was liquidated at 16,717 dollars 34 cents.
    On the 14th March 1798, the plaintiff obtained judgment in this suit for 1495 pounds, with a stay of execution for five months.
    On the 19th March 1798, Samuel‘Williams obtained judgment in this court against Taylor for one hundred and fifty-seven dollars sixty-four cents; and a Ji: fa: under this judgment being levied upon the two lots in question, they were sold on a venditioni expands to Gabriel Furman for one hundred dollars, and a deed executed to him on the 13th March 1800, which on the 26th November following was acknowledged in court. On the 2d February 1801, Gabriel Furman conveyed to J. G. Wachsmuth.
    
    On the 11th July 1799, the plaintiff issued a ca. sa. against die defendants, upon which Taylor was committed to prison on the 15th; the writ was returned non est inventus as to Barron. On the next day Taylor was discharged from custody by the Chief Justice, upon his giving bond according to the act of 4th April 1798, to comply with the insolvent law at September term; but he took no step at that term, and in December term following he merely filed his petition, without prosecuting the matter further. '
    On the 21st May 1800, the plaintiff issued a fi: fa: against the defendants which was levied inter alia upon the two lots in question, and in August following they were condemned. On the 13th December 1800, he issued an alias ca. sa. upon which Taylor was again arrested, and on the 16th December he was again discharged from custody on giving a bond with the same condition as before, which was accepted by the plaintiff’s attorney, and filed in court. Agreeably to this bond, he applied for his discharge under the insolvent law at tbe December term, and in January 1801, he was discharged in the usual manner. Young afterwards issued a venditioni exponas to December term 1806, under which part of the property condemned in August was sold; and by an alias venditioni to July term 1808, the two lots were sold to him for 1050 dollars, and the deed in question executed by the sheriff.
    Upon these facts, Binney and Rawle contended that such an interest was shewn in Wachsmuth and others his vendees, as entitled them to take Taylor's place in opposing the deed to Young. They are purchasers under an assignment from Taylor before all the judgments, and also under a sheriff’s deed duly acknowledged in court. At the same time no decision is asked upon title in this summary way; it is disclosed to shew an interest in the question, and for no other purpose.
    The I objections to the acknowledgment of the present deed, rest partly upon the fact that the property has already .been sold under an execution against the same defendants, sanctioned by the acknowledgment of the sheriff’s deed; but principally on the invalidity of the plaintiff’s proceedings; and as they cannot be heard collaterally in an ejectment, the law of 1705 in devising the ceremony of acknowledgment, impliedly enjoins upon the court to hear them in this stage of the cause. They are four. 1. That as there had been an alienation of the lots prior to the plaintiff’s judgment and execution, he could not execute the land, without previously issuing a scire facias to the terre-te'nants. 2. That the plaintiff’s judgment being more than five years old at the date of his venditioni, and never having been revived according to the act of 4th April 1798, its lien on these lots was lost, and the intermediate disposition of them to other persons, was a bar to his execution. 3. That the ca. sa. upon which Taylor was charged in execution was a satisfaction of the plaintiff’s judgment; and the fi: fa: being issued while the ca. sa. was in force, the levy and condemnation were irregular; or if not, then the alias ca. sa. and commitment were a complete waiver of the fi. fa., so that all subsequent proceedings under it were void. 4. That the lots having been once sold under a younger judgment, and bought by the oldest judgment creditor, no execution could issue from this court to sell them a second time as the property of Taylor.
    
    1. It is a general rule of law, that where the inheritance or freehold of land is to be charged by reason of any suit or writ, the tenant of the freehold ought to be made a party to it. Mallory v. Jennings 
      
      , Jefferson v. Morton 
      
      . Hence it has become a settled practice not to reverse a fine without a scire facias to the terre-tenants, who ought not to be putout of possession without warning, and who may have a release to plead, or some other defence to make. 1 Salk. 339. Tally's case 
      , The case of Eccleston and wife 
      , Cary v. Dancy 
      , Clerk v. Hardwicke 
      . It is a provision introduced for the protection of purchasers, to give then} an opportunity of making that defence, which after execution they may be precluded from making; and if this be the law upon a voluntary alienation by the defendant, how much more where the terre-tenant is the alienee of the sheriff, whose sale has been sanctioned by the court.
    2. The first section of the act of 4th April 1798, 4 St. Laws 301, provides that no judgment then on record, shall continue a lien on the real estate of the defendant during a longer term than five years from the passing of the act, unless the plaintiff or his representatives shall within that period revive it by scire facias. The object of the law was express notice of the judgment to all parties interested; for the third section directs service of the scire facias upon the terre-tenants and the defendant or his feoffees, and where they cannot be found and there is no occupant, a proclamation in open court at two successive terms. Young's execution within the year and day is of no importance; the law is an express unqualified destruction of the lien, unless there is a revival by scire facias. The evil to be remedied was the continuance of liens in perpetuity, without express notice to purchasers; the remedy was a revival by scire facias every five years with notice. A continuance of the judgment by execution, was therefore in nowise contemplated by the law, as rendering the scire facias unnecessary, because it was in part the very evil to be cured. The execution is not followed by notice to any one; and after it has once issued, the “judgment, if affected by it at all, continues to be a lien forever, without any further proceeding. The law on the other hand demands notice in every period of five years, upon pain of losing the lien. The uses of the execution and of the scire facias are also entirely different. The one is to entitle the plaintiff to an execution at any future day, the other to preserve the lien of his judgment. His lien exists for five years after judgment, whether execution issues or not; in like manner his judgment may be continued so as to entitle him to'execution, although it has lost its lien. It follows therefore that Young’s judgment had lost its lien on these lots, if it ever had any, and that he could not issue execution against them in the hands of an intermediate purchaser.
    3. Taylor was committed to prison upon a ca. sa. in July 1799. When the body of the defendant is taken in execution, although it be not in itself any satisfaction, yet as to him there cannot be any other execution. Williams v. Cutteris 
      
      , Foster v. Jackson 
      , Cohen v. Cunningham 
      
      . Notwithstanding the discharge by the Chief Justice, the ca. sa. continued in force, because the condition of the bond was, that in case he failed to obtain his discharge, he would surrender himself to prison to be charged by the plaintiff’s execution; 8 St. Laws 136; and in that case he would have been in custody under the original ca. sa. While this ca. sa. was in force, the fi. fa. could not issue; particularly as at all events the former writ had destroyed the plaintiff’s lien, and set up other judgments in preference to it. Freeman v. Rustan 
      
      . But if the f. fa. was valid, the alias ca. sa. and commitment at December term 1800, do most clearly overthrow it, and make void all subsequent proceedings built upon that foundation. Two executions cannot be in force at the same time upon the same judgment. Had Taylor when in custody applied to the court, they would either have discharged him, or quashed the fi.fa., at his election. Stamper v. Hodson 
      
      . He chose to assent to the ca. sa. and obtained his discharge by the insolvent law in consequence of it. The ji. fa. was therefore at an end. Young cannot now be permitted to say that the alias ca. sa. was void, for the purpose of setting up the prior execution; he cannot take advantage " of hi.s own wrong; but the court will say upon our suggest tion, what it would have said upon the motion of Taylor, that the ji.fa. was waived, that it ought to be quashed, and that no valid sale can grow out of it.
    4. The last point is of immense importance to purchasers at sheriff’s sales. A sale, even under the youngest judgment, when confirmed by the court, passes all the defendant’s estate; and upon every principle it should be held to bind all other judgment creditors, and. to debar them from executions against the same property. It should bind them upon the ground of laches, because being a public act, they are presumed to have notice, and should make their objections before the deed is acknowledged. It' should bind them upon equitable principles, because the best price is gotten for the land, and that is distributed among the judgments according to their priority. It ought to bind them upon strict principles of law, because the right-to sell in satisfaction is incident to every judgment, and by the acts of 1700 and 1705, 1 St. Laws 12. 67, a sale made under any judgment passes an estate to the purchaser as fully as it was to the debtor. It is analogous to a sale of goods under a.youngerfi.fa., which, however it may affect the sheriff, passes a title to the vendee. Smalcomb v. Buckingham 
      
      , Clerk v. Withers 
      . In practice such a sale is universally deemed binding; no inquiry is ever made by purchasers into the rank of judgments; and if this court should hold otherwise, it would not only produce the greatest confusion in titles hereafter, by giving a sanction to ten or twenty sheriff’s deeds for the same property upon executions against the same man, but would shake a great many titles already acquired. If however the youngest judgment cannot sell, none but the oldest can; and here the proprietor of the oldest bought at the sale under the youngest, and confirmed it. There can be no doubt that Furman’s judgment was the oldest lien. It was not an interlocutory judgment in December 1797, but a final judgment by agree- • ment for a large sum, as security for the payment of a smaller sum to be subsequently ascertained.
    
      
      C. Levy and Dallas for the plaintiff
    insisted, that an inter- ' ference of the court in the way required was without precedent; and that however it might be insinuated that the object was not to try the title, yet if the acknowledgment was refused, it would be decisive as to the title of the plaintiff, who without it could never attempt an ejectment. The plaintiff can prove upon a trial, that Wachsmuth has neither a legal nor an equitable title; that the assignments by Taylor were waste paper, never enforced, never supposed to have any validity, never even used to restrain Taylor from the control and alienation of the property assigned, until two days after Young's judgment, when they were hunted up and recorded to defeat it; that Furman's judgment was not only-interlocutory until after Young's judgment was entered, but that Furman's debt was provided for and satisfied by an assignment of personal property; and that the sale of the lots for one hundred dollars under the judgment of Williams, was not supposed to be worth any thing, the reduced price being the consequence of representations at the sale, that Taylor had no estate to be sold. These are objections which in this summary way we cannot examine. The plaintiff is entitled to bring them before a jury; the right is secured to him by the constitution; and the interposition of the court will therefore not only be in collision with the recent case of The Pennsylvania Insurance Company v. Ketland 
      , but it will deprive the plaintiff of his constitutional rights. In fact the court has but a ministerial duty to perform in receiving the acknowledgment; it is the right of the sheriff to make it. Be this, however, as it may, the objections to the acknowledgment have no weight.
    1. A scire facias against the terre-tenants, except in the case of a mortgage, has never been heard of in Pennsylvania, as a preliminary to execution. It is not required by the act of 1705, under which sales of land are made; and it would lead to a total defeat of the judgment creditor by collusive alienations, if it should ever obtain. It is not required even in England. Fitz. N. B. 597. The authorities cited are not to the point. They apply exclusively to two descriptions of cases, which have not a feature of resemblance to the present. The first is where there has been a change of parties by death; and there a scire facias introduces the new party, whether heir or terre-tenant. Such is the case of Jefferson v. Morton. The other is where the. proceeding is to reverse the title under which the terre-tenants hold. Such is Tulhfs case, Cary v. Dancy, and the case of Eccleston and zvife. There is a third class of authorities, where the point has been raised, whether without notice to the terre-tenanfs, the land could be charged by the execution, as Mallory v. Jennings, and Clerk v. Hardwicke; and it was well decided that it could not be. But the meaning of those decisions is, that the terre-tenant would not be bound, unless a party. Nor is he here. The judgment binds nothing but the defendant’s estate; the execution sells nothing else; and upon an ejectment, the deed does not conclude the terre-tenant, but he is at liberty to shew that the defendant had no estate, in Graff v. Smith (a) the execution of an intestate’s lands in the hands of a purchaser was resisted upon every ground; but the want of a scire facias was not thought of.
    2. The act of 4th April 1798 has no impression upon the case. The mischief before that law was, that j udgments upon which there had been no proceeding, were alive as to the lien, though dead as to the purpose of execution. The law therefore provided, that unless such judgments were revived by scire facias, they should not bind the land. But a judgment upon which an execution has issued in due time, never dies; and therefore it cannot possibly require revival. The object of the scire facias it is said, is to give notice. But. can it be doubted that an execution executed, as Young's was, is equivalent to a scire facias, in the particular of notice? The intention of the legislature is in some, measure to bo obtained from the preamble; and by that it appears, that all the evil in contemplation, was the perpetual lien of judgments, without any process to continue or revive the same. Here there is a clear exception of judgments upon which process has issued; so that the mode of preserving a lien .by issuing execution, remains as it was before the law.
    3. The general principle that a ca. sa. executed debars the •plaintiff from any other execution, may be admitted; but the circumstances of the case raise a distinction. The first ca. sa. was not a perfect execution, because the plaintiff lost the benefit of his writ by the discharge of Taylor from custody. Upon the defeat of this execution by operation of law? the remedy against the land revived. If while Taylor was in prison, a younger judgment had sold the land, Young it is true could neither have vacated the sale, nor claimed the proceeds; it is an inconvenience arising out of the law, and such is the decision in Freeman v. Ruston. But that is not the present case. The ca. sa. was defeated. It could never be executed again. If Taylor did not chuse to perform the condition of his bond, the remedy was on the bond, and not by charging him again on the old writ; and it follows therefore that he had a perfect right to levy the Ji. fa. Selwyn's N. P. 548, 549, 550.; 8 St. Laws 138. sect. 19. The fi.fa. being regular, the only question then is as to the effect of the alias ca. sa. While the f. fa. levy and condemnation were in force, Young could not in any way discontinue the fi.fa. without leave of the court. M'Cullough v. Guetner 
      
      . He could do no act which amounted to a discontinuance; and as two executions under the same judgment, cannot be in force at the same time, it follows that the alias was void, and did not affect the fi. fa. 1 Crompt. 531. 536. 537.; 2 Tidd 912.; Hobart 2.; 11 Viner 32, pl. 6. The court will now do the same in relation to the alias ca. sa., as they would have done in 1800; and they could not but have said, at that time, that the ca. sa. which to say the least of it was irregular, should not be deemed a waiver of process previously well executed. In fact, by the positive provision of the 17th section of the insolvent law, 8 St. Laws 136, after the order of discharge by the Chief Justice in 1799, no ca. sa. could issue against Taylor; so that the alias was void by the act of assembly, as well as upon general principles.
    4. The fourth point it is the less necessary to discuss, because every thing said under it, goes to the matter of title, which may be used upon an ejectment; but as a general position, it can never be maintained, that the mere acknowledgment of a sheriff’s deed, however fraudulent the proceeding, shall debar all the world from selling the land again, and. contesting the first deed before a jury. If the proceedings are regular, the court are bound to give deeds even to fifty contending purchasers, that they may resort to the constitutional tribunal of a jury^ for a decision on their title.
    
      
       2 And. 160.
    
    
      
       2 Saund. 6.
    
    
      
       2 Salk 598.
    
    
      
      
         Dyer 321 a.
      
    
    
      
      
        Cro. Eliz. 471.
    
    
      
      
        Moore 524.
    
    
      
      
        Cro. yac. 136. 143.
    
    
      
      
        Hobart 57. 59. 60.
    
    
      
       8 S. & E. 123.
    
    
      
       4 Sail. 214.
    
    
      
       8 Mod. 230.
    
    
      
      
        Carth. 419.
    
    
      
       6 Med. 292.
    
    
      
       1 Minn. 499.
    
    
      
       1 Dall. 481.
    
    
      
       1 Binn. 214.
    
   Tilghman C. J.

gave no opinion, having been of counsel in Furman's suit.

Ye ates J.

delivered the opinion of the court.

Samuel Young has applied to the court to accept the sheriff’s acknowledgment of a deed for two lots of ground in the city of Philadelphia, levied on by the sheriff as the property of John M. Taylor, and sold at public vendue for 1050 dollars. It would be a matter of course to take the acknowledgment, if good ground is not shewn against it. Without this sanction of the court, the sheriff’s deed can have no legal operation; and it behoves the party who opposes the sale on the ground of irregularity, to make his exception, previous to the court’s approving of the deed. For it has often been decided, that on the trial of an ejectment instituted by the sheriff’s vendee, the court will not inquire into the formality of the proceedings on which the sale was founded; it amounting in fact to an attempt to reverse the process of one court in one cause, by another court collaterally in another cause.

The counsel of Mr. Young have contended, that Taylor alone could except to the acknowledgment; and that Messrs. Wachsmuth and Fisher not being parties to the record, were incompetent to take the exception. They cannot be considered as mere interlopers, but are interested in the present application. There is some kind of privity between them and Taylor. They claim the lots of ground in controversy, both under a conveyance from Taylor and Mr, Joseph Ball his assignee, and under a prior sale of the premises as the property of Taylor by a former sheriff. If it clearly appeared on the representation of a mere stranger, that the proceedings had in the cause were erroneous, and the process of the court. abused, would the members of this court shut their ears against the information? There is now no appeal from the decisions of this court to another tribunal; and it' is particularly incumbent on us to see that justice is dispensed in its accustomed channels.

We desire to be fully understood in the present instance. Our uniform practice has been to refuse trying the title of lands, or the property in goods levied upon, under a writ of fieri facias. The reason is perfectly plain. It would deprive the adverse party of his constitutional right to a trial by j ury. We lay it down as a general rule; but do not however assert that there may not be exceptions to it, or that such a case might not occur, as would demand our immediate interposition. The circumstances must be strong indeed which would warrant it. We mean to insinuate no opinion whatever upon the conflicting titles here.

1st. The first objection made to the proceedings under the judgment of Young against Taylor, is, that no scire facias has issued against the terre-tenants of the premises, upon the change of title. We do not think this exception well founded. Neither the act of assembly of 1705, nor the practice which has obtained under it, demands such-process. In fact it would render the provisions of the act. illusory. A defendant might ón judgment obtained against him, and previous to the issuing of a fieri facias against him, alien his lands. When the scire facias issued against the terre-tenant, he might again alien and change the possession before judgment thereon, and thus the proceedings might be protracted by adroit management for an indefinite period of time, and the remedy of the creditor by execution against the lands of the debtor, be rendered fruitless.

2d. The second objection, founded on the act of assembly of 4th April 1798, “ limiting the time, during which judg- “ ment shall be alien on real estate,” seems without just grounds. The first section- of that law is alone applicable to the present case, as it respects judgments on record at the time of passing the act, It directs “ that no such judgments u shall continue a lien on the real estate of the defendant ■ “ during a longer term than five years, unless the person “ who has obtained such judgments,, or his legal representa- “ tives, or other persons interested, shall within the said term M of five years sue out of the court, wherein the same has cc been entered, a writ of scire facias to revive the same.” No change is contemplated in the law, as to the lien of judgments, excepting those unrevived within the five years; nor is 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 2d,' abolished thereby. The scire facias operates as notice to the parties interested, and evidences the intention of the creditor to claim the lien of his judgment. But it will not be denied that the plaintiff taking out a fieri facias, levying on the 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 of this section of the act.

3d. I proceed to the third objection, which seems to us to be solid. Here it becomes necessary to take a summary view of the facts. Toung obtained his judgment against Taylor and Barron on the 14th March 1798, with a stay of execution of five months, which expired on the 14th August following. On the 11th July 1799, within the year, he issued his ca. sa. returnable to September term following, upon which the sheriff arrested Taylor on the 15th fuly, and had him in custody, but returned non est inventus as to Barron. On the next day viz. 16th fuly, Taylor applied by petition to the Chief Justice of this court, and gave bond with security, u conditioned that he should appear before this court at “ the, September term 1799, and surrender himself to prison, in case on his said appearance he did not comply with all things required by the act of 4th April 1798 to procure “ his discharge; or if the proceedings should be stopt by in- “ formation upon oath or affirmation, and in the trial of the “ issue he should be found guilty, he should immediately “ surrender himself to prison'to be charged at the suit of “ Toung.” Taylor was thereupon discharged out of custody; but did not apply for the benefit of the insolvent act at the September term. On the 28th December 1799 he did apply by petition to this court as an insolvent debtor, but took no further step to comply with the law. It seems clear that Taylor was liable to be charged in execution at the suit of Toung, for not appearing in court in September term 1799, and complying with the terms of the law agreeably to the condition of his bond: but instead of charging him in execution, Toung took out a fieri facias returnable to September term 1800, which in the month of May was levied upon goods as per inventory, a lot on Centre Square No.'2176, two lots in question No. 1776 and 1777 on Market and Twelfth-streets, and a ground rent of thirty dollars, and the lands were condemned by inquisition on the 30th August 1800. On the 13th December 1800, Toung by his attorney Mr. Hallowell issued an alias ca. sa. on his judgment, returnable the 27th December 1800, on which the sheriff arrested Taylor and had him in custody, and returned that service had been forbidden as to Barron. Taylor again applied, and on the 16th of the same month he gave a new bond with other sureties, conditioned as before, which was accepted by Mr. Hallowell and filed in court. On the next day he filed his petition in court with the proper schedules, and the court adjourned the consideration thereof to the 19th January 1801, with leave to add the names of two creditors to his list; and finally he was discharged by the court on complying with the terms of the act of 4th April 1798, and Nathan Baker was appointed assignee. Afterwards, upon a venditioni exponas returnable to December term 1806, the ground-rent of thirty dollars was sold to Toung for two hundred and eighty dollars; ánd upon an alias venditioni ex-ponas to July term 1808, the two lots in question were also sold to him for 1050 dollars, and a deed having been executed therefor, this court are called upon to receive the sheriff’s acknowledgment thereof.

On this statement of facts, it appears that Toung electéd his remedy in the first instance against the person of Taylor to September term 1799, who was thereupon in custody, and having forfeited his bond by not complying with the terms of the law, he was liable to be charged in execution at the suit of Toung. It seems highly questionable whether, under the discharge of Taylor by the Chief Justice., he could withdraw his ca. sa. and issue a fieri facias to September term 1800, without the sanction of the court. But while the fieri facias was in full operation, he certainly could not legally proceed' to arrest the body of his debtor upon a ca. sa. A plaintiff may take out one execution against the body of a defendant, and another against his goods at the same time, but both cannot be served. The cases adduced on the argument fully shew this; and it is admitted on both sides, that issuing of the alias ca. sa. was erroneous, though they differ in one particular, whether it was merely void, or only voidable. There can be no doubt but that Taylor might have avoided it by writ of error to another tribunal, or by motion to the court. But the question is, whether Taylor having submitted thereto, and the proceedings on his ultimate discharge being founded thereon, it is competent to Toung at the distance of nine years to annul his own act, and thus remove an obstacle to his fieri facias, to the manifest injury of strangers to his proceedings? It is not necessary for us to determine in this stage of the business, whether the court would interfere on the application of Toung to set aside the alias ca. sa. It is sufficient for us to decide, that upon inspection of our records as they now appear, the alias ca. sa. being a continuance of the original ca. sa., and the fieri facias having issued pending the operation of the ca. sa., the fi.fa. was irregularly issued, and on the motion of Taylor would then have been set aside, and necessarily must now be set aside. Such is the irregularity of the proceedings in our view of the case, that we do not deem ourselves warranted under such circumstances to receive the acknowledgment of the sheriff’s deed.

Mr. Toung is not precluded by our decision from trying the title of his adversaries. Ah action may be instituted in the name of Mr. Baker the assignee under the acts of insolvency; or, if his counsel shall judge it to be most advisable, he may endeavour to make his proceedings more regular, and then, by a purchase at another sheriff’s sale bring the suit in his own name.

We forbear expressing oúr sentiments on one point warmly pressed by Mr. Raxvle. Whether a sale of lands under a later judgment can in any degree affect the lien of a prior judgment; whether such first sale can vest the title of the lands in a purchaser, so that the same cannot be again sold under a prior judgment, being considered as analogous to the sale of goods in England under a later execution; or whether ány subsequent acts of the oldest judgment creditor, such as the receipt of a part of the purchase money in discharge of his debt upon a sale under a third judgment, will take away all recourse to the lands from the intermediate judgment creditor, are questions of much public moment, which deserve great consideration, but which it is unnecessary to decide at present. It is sufficient to state that different opinions have been entertained by professional gentle.men of great respectability on these points, and that it will be time enough to determine them when they come directly before us. I again repeat that we say nothing of the title to these lots of ground; but we are fully satisfied on the grounds of irregularity and abuse of the process of this court, that this sheriff’s deed should not receive the sanction of our court.

Acknowledgment refused.  