
    Lewis, Esq. against Smith.
    ACTION on the case for money had and received, &c. brought by William Lewis, Esq. against John Smith, marshal of the United States, for the district of Pennsylvania, to recover the proceeds of the sale of certain goods taken in execution and sold by the defendant, by virtue or under co-lour of a ji. fa. issued from the Circuit Court of the United 
      
      States, in the name of Escaralté, plaintiff, agaiflst Thomas Fitzsimmons, defendant. The circumstances were as follows :
    
      Upon a confession ofju figment, if the plaintiff’s demand is in the nature of a debt which may be ascertained by calculation, it is sufficient to entzr judgment generally. The judgment is supposed to be for the amount of damages laid in the declaration, and execution may issue accordingly; but the plaintiff should endorse upon the execution the actual amount of the debt, and if the defendant complains, that injustice has been done, the Court on motion, or a Judge at his chambers, before the return of the writ, upon a proper case being made out, will give immediate relief.'
    An agreement to enter judgment as of a particular term, is complied with by an entry of judgment as of a subsequent term, provided no third person is injured thereby. A judgment erroneously entered is valid until reversed.
    If an execution be issued within a year and a day after judgment, an alias execution may be sued out at any time afterwards, without a scire pacías to revive the judgment, though the first writ was not returned, provided, continuances by vice covtes non misit breve be entered.
    A levy upon a part of the goods in a house in the name of the whole, is a good levy upon the whole. Personal property is bound from the time an execution is delivered to the sheriff.
    If a levy be made upon goods which are suffered to remain in the defendant’s possession several years, they are not protected from a subsequent execution, unless the levy be returned before the subsequent execution is delivered to the sheriff,
    A collateral agreement made by the defendant’s friends with the plaintiff’s attorney, to be answerable for goods levied on by the marshal and remaining in the defendant’s hands, vests no pro* perty in the marshal.
    
      By an agreement between Benjamin Fuller and Thomas Fitzsimmons, an amicable action in cáse was entered in this Court, as of December Term, 1798, in which Fuller was plaintiff, and Fitzsimmons defendant, and on the 2d September, 1799, judgment was confessed by the defendant with a stay of execution for sixty days. The judgment was entered on the docket generally, without stating for what sum. Mr. Fuller died, November 29th, 1799.
    A sci. fa. to revive the judgment issued in the name of William Lewis, as executor of Fuller, returnable to December Term, 1799, and by a paper enclosed in the sci. fa. it was agreed, that judgment should be entered for the plaintiff as of that term. On the agreement was an endorsement by the then prothonotary to this effect: Entered judgment as of December, 1799, according to the within agreements but the agreement was not filed, nor the judgment entered on the docket until the 20th May, 1800. To December Term, 1800, a f. fa. issued, to which there was no return by the sheriff, but an entry of vice comes non misit breve, was made upon the docket, and the execution was continued down until September, 1811, when a third pluriesf. fa. issued, by virtue of which the sheriff levied upon the household furniture of Mri Fitzsimmons, in the hands of the defendant, but desisted from proceeding further in consequence of his prohibition. The continuances by vice comes non misit breve, were not in fact entered upon the docket, until after the issuing of the execution in September, 1811. The return made by the sheriff to this fi. fa. was as follows : “ Levied as per inventory, and “ then forwarned by the marshal not to proceed in the levy.” The inventory was headed thus: “ Levied on the following “ goods in the name of the whole.” Then followed a specification of a number of articles, concluding with “ &c. &c. &c.”
    Under the plea of payment, the defendant gave notice of a special defence under the process of the Circuit Court of the United States, and the proceedings thereupon, which were shortly these,
    On the 9th June, 1801, one Escaralté obtained judgment Jit the Circuit Court of the United States, for the Fennsylva
      
      nia district, against Thomas Fitzsimmons, for 58,643 dollars 3 gents. On the 7th April, 1803, Mr. Fitzsimmons signed an agreement, that “ execution might issue in the suit with- “ out a sci. fa. to revive the judgment, notwithstanding the “ expiration of a year and a day from the time of the judg“ment.” A fi. fa. issued on the 17th September, 1303, returnable to the next October session, to which the following return was made, “ Levied on the real estate of the “ defendant, as appears by the inquisition.” From the inquisition which was annexed to the writ, it appeared, that a levy had been made upon a house and lot in Chesnut street, the property of Mr. Fitzsimmons, which had been condemned as insufficient to pay the debt and costs in seven years. A venditioni exponas issued to April session, 1804, which was returned with the following indorsement: “ Received, 28th February, 1804, at 9 P. M. and levied on “ household furniture, agreeably to inventory, at 10 o’clock “ of the same day. Proceedings staid, by order of the plaintiff’s attorney, and costs paid.”
    An agreement, without date, headed, “ Vend. Exp. EscaM ralte, v. Fitzsimmons,” entered into by fohn Craig and George Clymer, with A. f. Dallas, Esq. was given in evidence, which recited, that the marshal had levied upon personal property of the defendant, (among other things) valued (by the agreement) at 3000 dollars, and had advertised the same for sale. Messrs. Craig and Clymer, then agreed to guarantee that sum to the plaintiff (Escaralté) in the following manner.* Possession of the property was to remain in Mr. Fitzsimmons, who was to deliver it on demand to the marshal to be sold towards satisfying the execution. If possession should be taken by any other execution, or if the goods should not be delivered by Mr. Fitzsimmons to the marshal, on demand, they jointly and severally promised to pay to Mr. Dallas, for the use of the plaintiff, the sum of 3000 dollars, or in proportion for any part taken as aforesaid,, or not delivered on demand. The property was suffered to remain in the custody of Mr. Fitzsimmons during his life, and on his death, which happened in August, 1811, the marshal took possession of it, before Mr. Lewis's execution was delivered to the sheriff. The return to the venditioni, under which the sale was made, was joined with a return to another writ issued in the name of one Verdier, against the same de‘fendant, the circumstances of which case it is unnecessary to explain,' ran thus : “ By virtue of the writs to me directed, in “ these cases, Í have taken in execution as the property of the said Thomas Fitzsimmons, the goods, &c. contained in the annexed inventory, and sold the same for the sum of 2388 dollars 85 cents, which money I have here before the Judges as I was commanded.” The proceeds of the sale were paid to Mr. Dallas, the attorney of Escaralté, notwithstanding a letter, bearing date 12th September, 1811, written by Mr. Lewis to the marshal, claiming the amount of the sales to be made of Mr. Fitzsimmons’s furniture, and warning him not to pay it over.
    After the sale, Mr. Lewis moved in the Circuit Court, for a rule upon the marshal to bring the money into Court; and after it had been brought in, he obtained a rule to. shew cause why he should not take it out, which after argument was dis<charged ; but expressly without prejudice to his right to resort to the marshal.
    On the trial of this cause, among other points which will be noticed, it was contended for the plaintiff, that the marshal had no right to sell the goods of Fitzsimmons, inasmuch as no levy had been made upon them by virtue of the fi.fa. issued in September, 1803 ; but the defendant insisted, that a levy had in fact been made, before the return of that writ, and gave some evidence in support of his allegation. The Chief Justice left it to the jury to decide, whether, the marshal had made and returned a levy, and at what time ; instructing them, that if in their opinion, a levy actually was made before the return day of the fi. fa., and returned before Mr. Lewis’s execution was put into the sheriff’s hands, to find for . the defendant. . ¿..
    - The jury found for the plaintiff 2870 dollars.49 cents; and the cause now came before the Court on a motion by the defendant for a new trial, for which the following reasons were assigned. •
    1. Because the Chief. Justice charged, the. jury, that the judgment confessed by the late Mr. Fitzsimmons in favour of the late Mr. Fuller, on the 2d September, 1799, was final whereas, the same was in its nature only interlocutory.
    2. Because the Chief Justice charged the jury, that the. agreement between the late Mr. Fitzsimmons and Mr. Lems, to enter judgment on a scire facias as of December Term, 1799, was complied with by the entry of judgment as of 'March Term, 1800.
    3. Because the Chief Justice charged the jury, that an execution need not be returned, if issued within a year and a day, to enable the plaintiff to issue an alias execution at a subsequent time, without reviving the judgment by scire facias; but that continuances might be entered by vice comes non misit breve, without a return to the first execution.
    4. Because the jury were charged, that the proceedings of the sheriff, under Mr. Lewis’s execution, amounted to a good levy upon the whole of the goods, the proceeds of which are claimed in this suit.
    5. Because proceedings had taken place in the Circuit Court of the United States, whiph though not pleadable in bar, precluded the plaintiff’s recovery in this suit.
    ■ 6. Because the defendant was justified, by the proceedings ■exhibited in evidence, in his sale of the goods, of which Mr. Lewis claims the proceeds, and paying the money over to a judgment creditor.
    7. Because the agreement between the marshal and Messrs, Craig and Clymer, operated under all the circumstances of the case, as a transfer of the furniture to the former, to secure Fscaralté’s debt, and rendered it liable to be sold by him at any subsequent time for that purpose.
    8. Because the verdict was against law and against evidence.
    J. R. Ingersoll and Levy, for the defendant.
    The judgment upon which the sci.fa. issued, was merely interlocutory. The declaration, it is true, was for 30,000 dollars, money had and received, arid the damages were laid at 60,000 dollars ; but the judgment was entered generally; it was indefinite ; no sum was ascertained. The intention of Fitzsimmons evidently was to give a judgment equivalent to a judgment by default; confessing that something was due, but leaving it to the proper tribunal, a jury of .inquiry, to ascertain the amount. The stay of execution for sixty days was to afford time to fix the amount of the debt; for it cannot be supposed that the parties intended execution should issue, even after the expiration of that period, unless the sum for which it was to issue had been previously determined, in a manner known to the law.-' Unlike the case of a bond or note,- id which the amount clue can be easily adjusted by calculation, there is here no standard by which a calculation can be made.
    2. The agreement to enter j udgment on the sci.fa. authorised an entry of judgment as of December Term., 1799, only; yet it was entered as of March Term, 1800,, and was not actually placed upon the docket until 20th May, of that year.' This was not a compliance with the agreement, either in words or in substance. Not in words, plainly; not in substance, because Mr. Fitzsimmons might have sustained an injury in consequence of having purchased lands, after December, 1799, which a judgment, entered as of March Term, 1800, would have bound, but which, if aliened before executioh, would not have been affected hy a judgment entered at the time referred to in the agreement.
    3. To entitle a plaintiff to issue an alias fi. fa. after the expiration of ayear and a day, without a sci.fa., by entering continuances by vice comes non misit breve, it is necessary that a f. fa. should have been issued within the year, and that it should have been returned. The writ of scire facias was given by the statute of Westminster, 2d (13th Edw. 1,) ch. 45. to prevent the necessity of a new original upon the judgment. Post annum et diem, the presumption is, that the plaintiff may have released, and the object of the sci.fa. is, to give the defendant an opportunity of shewing the release, or that the judgment was in some way discharged. It is very hard to take away the privilege intended to be given to the defendant, by any mode of practice short of actual notice, which is the case even' where the execution, within the year, is returned nulla bona; but it is going much further to permit an execution to be continued down for a length of time, without any return of the first writ, and is, in fact, taking away the benefit of the sci. fa. altogether. The English practice is well settled. In 2 Tidd’s Prac. 1004, it is laid down, that where a writ.- of execution is taken out within the year and not executed, a new writ may be sued out at any time afterwards, provided, the first writ be returned and continuances entered from the time of issuing it. An elegit, it is true, may issue, after a year and a day, although no previous writ has been returned; nor indeed is^ it necessary any should have been taken out within the year. An award of an elegit may be entered on the roll at any time afterwards, and continued by vice comes non misit breve. 
      Carth. 283. Comb. 232. Barnes, 210. 213. But the ele git is given by statute, and even with respect to that writ this mode of proceeding has been sustained, against the judgment of the Court, merely because it. would have been dangerous to destroy an ancient practice. But with respect to common law writs of execution the rule is widely different. In Aires v. Hardress,
      
       a ji.fa. was-taken out within the. year, and nulla bona returned. It was continued down several years, and then a' ca. sa. issued. This was held to be goad on the ground of practice, but the Chief Justice declared, that if it were a new case the Court would think it hard to take away the sci. fa.; the practice, however, had gone too far to be overturned. In Blayer v. Baldwin,
      
       this, point was , expressly decided, and it was held irregular to continue an execution which had never been returned of filed by entering on the roll continuances .by vice comes non misit breve. See also 6 Bac. Ab. Sci. Fa. C. 2. p. 107. 2 Bac. Ab. Ex’n. B. 2. Such is the practice in England. A.different one cannot be shewn to have prevailed in Pennsylvania. There is .not to be found a decision of a,single Court, by which the.',practice,contended for on the other side is sanctioned. The list of case's exhibited by the deputy prothonotary proves very little. It does not shew the date Of the judgments, except in two instances, so that non constat that the executions were after a year arid a day : nor does it shew, that any of the writs were executed, or that there was any appeal to the Court. If, therefore, such a. practice has pxisted in Pennsylvania, it has existed sub silentio; it is neither an ancient, an uniform, nor a reasonable practice; it is in opposition to,the statute and to the English practice as established by repeated judicial decisions, and ought to be abolished, as was done by this Court when they quashed an execution to Bucks county, issued upon a judgment obtained in Philadelphia, without a previous execution in the county in which the venue was. laid, notwithstanding the practice, 1 Dall. 330.
    4. The levy was irregular. It is not enough to levy upon a part in the name of the whole, unless it be stated, what the whole- is and where it is. It is indeed law, that a seizure of a part of the goods in a house, -in the name of the whole, is good. 2 Tidd, 925. 1 Ld. Ray. 725. But in the present ease, there is,not only no statement of what the goods were, but no mention of the place in which the levy was made. Besides, there should, have been an actual seizure and posses-, sion, sufficient to vest in the sheriff such a property in the goods, as would have enabled him to maintain an action of trover or trespass. 2 Tidd. 924.
    
      5. The decision of the Circuit Court, which turned upon the first execution not being returned, is sufficient to prevent the plaintiff from recovering. The defendant paid over the money in conformity with that decision, and ought not now to be compelled to pay it again.
    b. The proceedings in the Circuit Court justified the sale by the marshal. A levy was proved on the 17th September, 1803, and whether it was returned or not is immaterial. All writs which are to be executedwholly by the authority of the sheriff, aré good when executed, though never returned, for the plaintiff has then the effect of his suit, and there is nothing further to be done on his part. 2 Bac. Ab. Ex’n. C. p. 710. If the levy was made, it protected the goods from subsequent executions issued from the courts of this state, notwithstanding the property was suffered to remain- in the hands of Mr. Fitzsimmons. For whatever may have been the decisions in England on this subject; whatever may be, the propriety of those decisions; and whatever sanction they may have received from the Circuit Court of the United States, it is now too well established in Pennsylvania to be shaken, that if household furniture be levied upon and left in the hands of the defendant, it is not in point of law a fraudulent levy, which leaves the property exposed to subsequent executions. Levy v. Wallis,
      
       Waters’s executors v. M'Clellan,
      
       Chancellor v. Phillips.
      
       It is unnecessary, however, in the present case, to rely upon the decisions which seem to -he peculiar to the Courts of Pennsylvania, since at the time Mr. Lewis’s Ji. fa. was attempted to be executed, the goods were actually in the possession of the marshal by virtue of Escaralté’s execution, which would be sufficient even if the strict rule of the English law were to govern.
    7. But independently of the defendant’s title under the execution, he was authorised in taking possession of and selling the goods by the agreement entered into byv Messrs. Craig and Clymer, with Mr. Dallas. The instrument was not, it is true, executed by Mr. Fitzsimmons, but it was signed by two of his friends, doubtless with his knowledge and sanction ; and having adopted their act, he has made the agreement his own. Thus, a property was vested in the defendant, either specially as marshal, or personally as trustee for Escaraltc; in either of which characters he was justifiable in selling the goods.
    
      Lewis and Rawle for the plaintiff.
    1. It is perfectly clear that a final judgment was contemplated by the parties. It was a judgment by confession, and. was meant to bind Mr. Fitzsimmons's real estate. The stay of execution for sixty days, shews beyond a doubt, that an. interlocutory judgment was not. intended, and if further proof of its character were wanting, it may be found in the' confession of judgment on the sci.fa. In all cases founded upon Contract, when the amount of the debt can be ascertained by calculation, our practice has been not to execute a writ of inquiry, and if the practice is now to be.overturned, a very great majority of the judgments entered in actions on the, case, are liable to reversal.
    2. Admitting the judgment on the sci. fa. to have been entered as of March Term 1800, instead of December Term 1799, (though the prothonotary’s indorsement on the agreement proves the contrary) still it was good. It worked no injury.to the defendant in that suit, nor to any other person.. On the contrary, it was an advantage to Mr. Fitzsimmons, because it prevented the interest from becoming principal until March. 1800, and it could not affect the purchasers of his lands, because they were bound only from 20th May 1800, when the judgment was entered on the docket.
    3. It is not necessary that an execution, issued within a year and a day, should be returned, in order to lay a ground for a subsequent execution, without a sci.fa. The practice of. the Court is the law of the Court. 2 Str. 755. So far was respect to ancient practice carried in the case of Seymour v. Grenvill,
      
       that an elegit was supported, though no execution had been taken out within the year, and no sci.fa. had been issued. This was done in opposition to the opinion of the Judges, upon the ground of a long practice which had bepome the law of the Court. That the practice of this Court has been such as was pursued in the present case, the certificate of the deputy prothonotary, exhibiting no fewer than twenty-six cases, in only three of which the execution was returned, sufficiently proves. This mode, of proceeding too corresponds with that which prevailed in England prior to the settlement of Pennsylvania, and for some time after. Until 4 Geo. 1, it was the constant practice to co'ntinue an execution by vice comes non misit breve, without returning the first writ. In Co. Litt. 290 b. it is laid down, that if the plaintiff take out a fi.Ja. within the year, he may continue it after the year till h.e hath execution; but not a word is said of the necessity of returning the first writ. In Belloes v. Hanford,
      
       it was held, that a plaintiff who continued his process, might have execution twenty years afterwards; and a return of the first execution is not made a pre-requisite. The practice was státed thus in Welden v. Greg: If a fi.fa. or elegit be taken out and not executed, a new fi.fa. or e legit may issue several years after, provided continuances are entered from the time of the first writ; and these continuances may be entered after the second writ has issued. And in v. Welden, it was stated by Allen, and agreed by the court, that if a new fi. fa. be taken out once a-year, the process may be continued. In neither of these cases is a return to the first writ mentioned. It was said by Holt, C. J. in Paramour v. Johnson,
      
       so recently as 12 Wm. 3, that if an execution be taken out within the year, and the sheriff make no return to it, upon entering a vice comes non misit breve, once a-year, you may continue it, and not be put to a sci.fa. To the same effect is the opinion of the same Judge in Atwood v. Burr.
      
       The first case in which a return is mentioned, is that of Airis v. Hardress,
      
       in 4 Geo. 1, in which a fi.fa. was taken out within the year, and nulla bona returned. It was continued down several years, and then a ca. sa. issued, which was held to be regular; but it does not appear, even in this case,' that a return was considered essential to the regularity of the proceeding. Nor can any good reason be assigned why the first execution should be returned; since' no better notice is conveyed to the defendant by indorsbig a return of nulla bona on the writ, than he derives from t^e mere circumstance of its being sued out. Thus we find, that the practice which now exists in England, and which, without doubt, is correctly stated by Tidd, was not introduced until long after the settlement of Pennsylvania: of course it can have no operation on our courts.
    But admitting the execution to have been erroneous, it was not void. It issued upon a judgment, which was valid until reversed or set aside by the court. 5 Binney, 269. 273. An execution erroneously issued, is merely voidable; as is proved by the case of Shirley v. Wright,
      
       where the sheriff had the defendant in custody upon a ca. sa. issued post annum et diem, without a sci.fa. and let him escape. It was held that the sheriff was liable, and could not take advantage of the error. So in Patrick v. Johnson,
      
       it was decided, that an execution sued out after the year, is not void, but merely voidable by writ of error, and until reversed, it is good. In Mumpherson v. Gates,
      
       the court was prayed to stay an execution, which had issued upon a judgment eight or nine years old, without a sci.fa., but the motion was denied, and the party put to his audita quesela. Bush’s case, and Ogrell v. Pastor,
      
       establish the same position. Now Mr. Lewis’s execution remains unreversed; and, according to the principles of the cases cited, whether it was erroneous or not, the proceedings under it were valid. Nor could the marshal, if they were not valid, take advantage of that circumstance, because he was n.o party to the suit, in which the writ issued. Richbell v. Goddard.
      
    
    
      4. The levy was regular. A levy on a part of the goods in a house, in the name of the whole, is a good levy upon the whole. Cole v. Davies.
      
       But it certainly is not competent to the present defendant to object to the sufficiency of the levy, since, if. it was defective, it was entirely owing to his interference, which prevented the sheriff from proceeding in his duty. He had received regular notice of Mr. Lewis's claim, and was therefore bound not to pay over the money arising from the sale, until the conflicting claims were properly determined; and if he prevented the sheriff from taking a full inventory of the Whole property, he cannot urge that a reason why he should not be responsible for the whole. Besides, the goods were bound from the time the execution was delivered to the sheriff; which makes it immaterial whether a levy was made or not. Gilb. on Ex’ns. 13, 14. 10 Vin. 563.
    5. Whether or not a levy on the property in question was actually made and returned by virtue of Escaralte’s fi. fa. in 1803, was a question of fact left to the jury, and their verdict has found that there were not. But, admitting a levy to have been made at that time, can it be supposed that the Supreme Court meant to establish so alarming a doctrine as, that goods may be left in the hands of a defendant eight or ten years, and during the whole of that period be protected from bona fide creditors ? Could they have intended to pi'otect goods which were not even inventoried and returned, so as to convey notice to third persons of the situation in which they were placed; thus alluring them to give credit to appearances which were fallacious ? The courts of Pennsylva'nia have gone great lengths in protecting property of this description, but they never could have contemplated the introduction of a doctrine so subversive of confidence; and to a case like the present, in which thei'e was an attempt to cover property for án indefinite time by a secret agreement, the rules established by the cases cited must be wholly inapplicable.
    6. As- the decision of.the Circuit Court of the United-States, was expressly without prejudice to Mr. Lewis’s right to resort to the marshal, it is unnecessary to inquii'e how far that Court could, in the manner in which the case was brought before them, bind the plaintiff’s rights. It would require, however, very little argument to shew, that the mere discharge of a rule to shew cause why money should not be taken out of .Court, without deciding who was entitled to it, cannot prevent a recovery in an action brought to try the right. The exception, .indeed, states the order of the Circuit Court merely as an obstacle, which amounts to nothing, since it is admitted not to be pleadable in bar.
    
      7. The fallacy of the position, that the agreement of Messrs. Craig and Clymer with Mr. Dallas, transferred a property in the goods to the defendant, is very apparent. Those gentlemen'possessed no interest themselves, and of course could transfer none to any person ; much less could they vest an interest in an individual who was not a party to the instrument. The agreement amounted to nothing more than an indemnity against the risk of permitting the goods to remain in the hands of Mr. Fitzsimmons. They were to be delivered to the marshal for the time being, to be sold to satisfy Fscaralté's execution, and there was nothing in the whole transaction which resembled a trust. The defendant sold them as marshal, and had no idea of his having any other kind of property in them. And even if it had been intended to vest the property personally in the marshal, the transfer was incomplete; possession should have gone with the instrument. If goods are even mortgaged, they must be delivered. 1 Ves. 358. 5 C. D. Mortgage A. p. 105. Here was no delivery of possession. The property was to remain for an indefinite time in the hands of Mr. Fitzsimmons, and actually did remain in his hands until his death. The agreement, therefore, supposing it could have divested Mr. Fitzsimmons of the property, and have transferred it to the defendant, was, in point of law, fraudulent and void. Turner's case. 3 Co. 8. Lingham v. Biggs.
      
       The U. S. v. Conyngham;
      
    
    
      
       1 Str. 100.
    
    
      
       2 Wils. 82.
      
    
    
      
      
         4 Dall. 167.
    
    
      
      
         Id. 203.
    
    
      
      
        Id. 213.
    
    
      
      
        Carth. 283.
    
    
      
      
         1 Roll. Sep. 104.
    
    
      
      
         Sid. 59.
      
    
    
      
       1 Keble, 159.
    
    
      
      
         12 Mod. 377.
    
    
      
      
         7 Mod. 8.
    
    
      
      
         1 Salk. 273.
    
    
      
       1 Salk. 273.
    
    
      
      
         Lev. 404.
    
    
      
       2 Roll. Rep. 42.
    
    
      
       Cro. El. 188.
    
    
      
      
        Cro. El. 164.
    
    
      
      
        Cro. El. 271.
    
    
      
       1 Ld. Rag. 724.
    
    
      
       1 Bos. and Pull. 82.
    
    
      
       4 Dall. 358.
    
   Tilghman C. J.

The defendant contended in the first place, that the plaintiff had shewn no right to the goods of Fitzsimmons; and, in the second place, that he (the defendant) was authorised to sell them, and pay the proceeds to Fscaraltc, by virtue of the ft-fa. issued in his name. It will be necessary, therefore, to state the title both of the plaintiff and defendant. The plaintiff, who is executor of the last will and testament of Benjamin Fuller, deceased, gave in evidence a judgment in this Court for the said Fuller against Thomas Fitzsimmons, entered the 2d September 1799. This judgment was revived by the sci.fa. in the name of William Lexvis, executor of Benjamin Fuller, against Thomas Fitzsimmons. Judgment of the sci. fa. was entered 20th May 1800; a fi.fa. issued to December Term 1800, which was not returned by the sheriff, but an entry of vice comes non misit breve entered on the docket. The execution was continued by entries of vice comes non misit breve until September Í811, when a third pluries Ji.fa. issued, by virtue of-which the sheriff made a levy on the household furniture of Fitzsimmons (who died in the month of August next preceding) In the hands of the defendant, but desisted from proceeding further in the execution in consequence of the prohibition of the defendant. It is to be understood that the continuances by vice comes non misit breve were not in fact entered on the docket until after the issuing of the execution in September 1811. Several exceptions have been taken by the defendant to the proceedings of Benjamin Fuller, and his executor William Lewis, against Fitzsimmons, in this Court,

1st. It is said that Fuller’s judgment was only interlocutory, and therefore no execution could issue on it. The judgment was entered in the way very usual in this Court in actions on the case: that is to say, the ppothonotary entered in the - docket judgment, without mentioning for what sum. Inconvenience^ frequently arise from our loose practice; but the practice of every Court is justly said to be the law of the. Court, and we should produce' much greatef evils than those we wished to prevent, should we attempt now to destroy past judgments, because they were not entered in a manner so accurate as they might have been. I am glad this motion for a new trial has been made, because it affords an opportunity of settling several points of practice by the authority of the whole Court. I take it, that where judgments are confessed (as appears to be the case in Fuller v. Fitzsimmons) if the plaintiff’s demand is in nature of a debt, which may be ascertained by calculation, whether it arise on a note or other writing, or on an account, it is sufficient to enter judgment generally. The judgment is supposed to be for the amount of damages laid in the declaration, and the execution issues accordingly. But the plaintiff indorses on the execution the amount of the actual debt, and if the defendant complains that .injustice has been done, the Court are alwáys ready to' give, immediate and liberal relief on motion. Relief may likewise be given by a Judge at his chambers before the return 'of the execution, a proper case being laid before him verified by oath. That this was intended by the parties as a final and not an interlocutory judgment I am well satisfied,. First, because six weeks stay of execution is given, which is never done on an interlocutory judgment. A stay of execution supposes that execution might issue immediately if a stay were not given, but execution cannot issue on an interlocutory judgment. Again, the confession of judgment by Fitzsimmons on the sci. fa. brought by Fuller’s executors, proves tjlat gotfj parties considered the judgment as final; for, the sci. fa. recited a judgment for sixty thousand dollars, the amount of the damages laid in the declaration; I am therefore of opinion that this exception to the original judgment is not well founded.

2d. Exception is taken also to the judgment on the sci.fa. This judgment was founded on a written agreement, filed of record, between William Lezvis, executor of Benjamin Fuller, and Thomas Fitzsimmons. By this writing, which bears no date, it was agreed that judgment should be entered on the sci. fa. as of December Term 1799; but the agreement was not filed till 20th May 1800, and then judgment was entered as it is now alleged, not as of December 1799, but as of March 1800. It does not appear clearly from a view of the docket, whether the judgment was really entered as of December or March Term, but I will suppose it to be March; still I think the judgment may be supported: nobody was injured by it. To Fitzsimmons, if it made any difference, it was rather an advantage, for he gained something on the score of interest, as upon the entry of judgment on the sci. fa., the interest due on the original judgment would become principal. He never complained, although it was in his power to have had the judgment opened if he considered it as a violation of his agreement. At any rate, it cannot be said that the judgment was void; it was entered by the prothonotary, and never having been reversed, the Court cannot in this collateral way consider it as void.

3d. It has been contended with great earnestness, that the first writ of fi.fa., which was issued within a year after the judgment, not having been returned, the. continuances of the execution could not be kept up by vice comes non misit breve. From the authorities which have been cited, it appears to be the English practice, both in the King’s Bench and Common Pleas, to have the first execution sued out within the year and returned; that being done, you may take out an execution many years after, and support it by filling up the continuances from term to term by vice comes non misit breve. It appears too, that this practice crept upon the English Courts unawares, and upon its being first mentioned to them, they were inclined to disregard it, perceiving that its effect was to render a sci. fa. almost useless. But upon receiving information from their prothonotaries, that the practice was of considerable standing, they thought it best upon the whole to support it. Nothing can show more strongly the regard that every Court pays to its own practice. The question then with us will be, not what is the English practice, but what has been our own. My brother Yeates carries with him the experience of half a .century, in which he has had great opportunity of knowing the practice, not only in this city, but throughout the state. He has no doubt but it has been usual to fill up the continuances by vice comes non misit breve, without having thefrst execution returned, and in his opinion I readily acquiesce, because I can see no substantial advantage given to the defendant by returning the execution. If it could not be issued and returned without being made known to him, it might be said that this .knowledge was of some importance; but we know the fact to be otherwise. The plaintiff may deliver the fi.fa. to the sheriff, and request him to indorse nulla bona upon it, and make return without the defendant’s ever hearing of it. Now, where is the difference to the defendant, between an execution thus returned, and one never put into the sheriff’s hands at all ? I can see none, and therefore I have no hesitation in supporting the plaintiff’s execution.

4th. It is objected that the sheriff did not make a regular levy on the plaintiff’s execution. The return is “levied as “ per inventory, and then forewarned by the marshal not to “ proceed any further in the levy,” Annexed to the retarais an.inventory of part of the furniture of Thomas Fitzsimmons, headed in this manner: “Levied on the following’ “ goods in the name of the whole.” Under the circumstances of the case, all the furniture being in one house, I should consider this as a good levy upon the whole, if there were occasion to enter into that question, but there is not: for assuming at present that the marshal had no right to the goods, (a point to be considered hereafter) they were bound by the plaintiff’s execution from the time it was put into the sheriff’s hands, and this action may be well supported without a levy. The plaintiff has not brought trespass against the marshal; he only demands the money for which the goods were sold. . It was not the business of the sheriff to use force against the marshal; being forbid to proceed, he very prudently desisted, and made return accordingly. But the marshal received full notice of the plaintiff’s claim, both before and after the sale, and particularly just before he paid the money to Mr. Dallas, attorney for Escaraltc. The objection therefore to the formality of the levy is no obstacle to the plaintiff’s recovery in this action.

Having gone through the exceptions to the plaintiff’s proceedings, I will now consider that part of the case which relates to the proceedings in the Circuit Court of the Untied States.

1st. It is said that the case was decided there, and therefore ought not to be tried over again in this Court. But how stands the fact? After the marshal had sold the goods under colour of Escaralte's execution, Mr. Lewis obtained in the Circuit Court a rule on the marshal to bring the money into Court, and being .brought in, he obtained a second rule to show cause why he should not be permitted to take it out of Court. After argument, this last rule was discharged, but expressly without prejudice to Mr. Lewis's resort to the marshal, so that, from the very terms of the decision, it was no bar to this suit. The rule being discharged, the marshal was left at liberty to pay the money as he thought good, and paid it to Mr. Dallas, attorney for Escaralté, after notice from Mr. Lewis not to do so. When a person, not a party to the suit, applies to the Court for leave to take money out, it behoves him to make a very clear case, otherwise the Court will refuse to assist him in a summary way, and leave him to his action. This was precisely the conduct of the Circuit Court. They thought Mr. Lewis's proceedings in this Court irregular, because his first execution was not returned. But knowing that the practice of another Court was a matter in which they might be very liable to mistake, they took the precaution of expressing in their order, that they intended no prejudice to an action to be brought by Mr. Lewis. In any other than a matter of practice, I should have great hesitation in deciding contrary to the Circuit Court. But practice is often arbitrary, and every Court is best acquainted with its own practice.

2d. But the defendant contends that he was authorised to sell Fitzsimmons's goods, by virtue of a fi.fa. from the Circuit Court. This fi.fa. issued to October Term 1803, and the marshal made return in,writing, indorsed on the writ, “ Levied on the real estate of the defendant, which was con- “ demned, as appears by an inquisition annexed.” No mention. was made of a levy on personal estate ; but a venditioni exponas having issued to April Term 1804, it appears by an', entry in the marshal’s docket, that he received the writ on the 28th February 1804, and at ten o’clock in the evening of the same day, he levied on householdfurniture, agreeably to an inventory annexed. A venditioni exponas gives no power to levy; but the defendant contended that the levy was in fact made previous to the return of the fi. fa., and there being some evidence, though in my opinion slight, in support of this assertion, I left it to the jury to decide, whether a levy was made by virtue of the fi.fa., and whether the marshal had made return of such a levy, and at what time, instructing them to find a verdict for the defendant, if they should be of opinion, that there was a levy actually made before the return day of the fi.fa., and a return of such levy before Mr. Lezvis’s execution was put into the hands of the sheriff. This I did, because it had been decided by this Court, that household furniture levied upon by the sheriff, may be left in the hands of. the defendant without being liable to the subsequent execution of a third person. And whatever my own opinion of that decision might be, I did not think myself at liberty to contradict it at Nisi Prius; but I supposed, that considering the great length of time between the alleged levy and the sale, (upwards of eight years) the case could not fall within the decision of this Court, unless the marshal ha'd made return of the levy, so that Mr. Lewis might have notice of it. The jury found for the plaintiff; so, that we must now take for granted, either that the levy was not made on the fi.fa., or that no return was made prior to the time when Mr. Lewis’s execution was put into the hands of the sheriff. In either case, I think it very clear, that the marshal had no authority to sell in 1811, to the prejudice of the plaintiff’s execution. If there was no levy, of course there was no power to sell; and if there was a levy on the furniture, not only not returned, but with an actual return of a levy on real estate, how was it possible that any third person should know any thing of it? and if so, how can it be any other than a fraud in law by permitting Mr. Fitzsimmons to enjoy a false credit during' his whole life, for furniture which did not belong to him ? I say a fraud in law, for I am well satisfied, that no actual fraud was intended. But supposing the defendant’s sale not to be maintainable by virtue of the execution, the defendant’s counsel have very ingeniously brought forward another title, founded on a supposed transfer of the goods from Fitzsimmons to the marshal; and then they say, that although the goods were left for. eight years in possession of Fitzsimmons, and were, liable, while in his possession, to Mr. Lewis's execution, yet the marshal having taken them into his own possession before Mr. Lewis's execution came to the sheriff’s hands, might lawfully hold them against the execution. The facts on which this last claim is' founded must be strictly examined. The defendant gave in evidence a written agreement, without date, (executed no doubt in the year 1804) headed, “ Vend. Exp. Escarammlté v. Fitzsions,” and made by George Clymer and John Craig, friends of Mr. Fitzsimmons, with Alexander J. Dallas, attorney for Escaraltk. In this writing it was first recited, that the marshal had levied on personal property of the defendant (among other things) valued at three thousand dollars, and had advertised the same for sale, and then the subscribers (Clymer and Craig) agreed to guarantee the'said three thousand dollars in the following manner: The property was to remain in the hands of Fitzsimmons, to be delivered on demand to the marshal, to be sold towards satisfying the execution; but if the propertji should be taken ’by any other execution, or not be delivered by Fitzsimmons to the marshal on demand, Clymer- and Craig promised to pay'to Alexander J. Dallas, for the use of the plaintiff, the said sum of three thousand dollars, or in proportion for any part of the goods taken as aforesaid, or not delivered on demand. The goods were suffered to remain in the hands of Fitzsimmons during his life, and very soon after his death (which happened in August 1811) the marshal took them into his possession before Mr. Lewis's execution was delivered to the sheriff. . Now, I ban see nothing in this agreement which looks like an intent to transfer any property to the marshal. On the contrary, it is assumed, that the marshal had that kind of property which was sufficient to make a sale,, and undoubtedly he had, provided he had made a levy before the return day of the fi.fa. It is expressly mentioned, that on demand they were to be delivered to the marshal, to be sold towards satisfying Es- car alte1s execution. Fitzsimmons, the ownér of the goods, was no party to the agreement, which surely he would have been, had a transfer been intended; but the contracting par-r ties are two of his friends, who had no property, and therefore could transfer none. It seems to have been understood by them all, that a subsequent execution of a third person would take the goods, if laid on them while in Fitzsimmons’s possession. In short, the object of the agreement was only to indemnify Escaralté against the risk of leaving the goods in the hands of Fitzsimmons. The defendant’s case then is not helped by this agreement, -so that he must stand on the authority derived from the f.fa. I have said before, that the weight of evidence is in favour of the plaintiff’s assertion, that no levy was made till after the venditioni exponas came to the hands of the defendant; but even if there had, it would surely have been too late to re-seize the goods after the death of Fitzsimmons, and after an interval of eight years from the original seizure. Having considered this case in all its points, my opinion is against a new trial.

Ye ates

J. Eight reasons have been assigned for a new trial in this cause, which I shall consider separately. The last is of a general sweeping nature.

1st. When the Chief Justice charged the jury, that the judgment entered by Benjamin Fuller against Thomas Fitzsimmons was fnal, I understand him to mean that expression as contradistinguishing it from interlocutory, which does not bind lands. He condemned this loose mode of entering judgments, but the practice had become too inveterate to alter it without some rule of Court previously made known. It was not a judgment by default, but by cpnfession: it contained a stay of execution for sixty days, and the subsequent judgment agreed to by Mr. Fitzsimmons, shewed the intention of .-the parties, that they considered it as final. I see nothing incorrect herein.

2d. I am abundantly satisfied, from inspection of the docket and agreement to enter judgment on the scire f acias, that the judgment therein was entered as of December Term 1799. That it was so intended by Mr. Burd, the then prothonotary, can admit of no doubt, from his indorsement on the agreement. It is inserted amongst the suits of December 1799, and it is admitted by the clerk who entered it, that he committed an error in his entry, by inserting 20th March 1800, instead of May 1800, the real time of entry. Should ^ however he mistaken herein, I have nohesitation in saying that this judgment remains in full force until it be reversed. It cannot be annulled collaterally, in another suit between other parties. Mr. Fitzsimmons never complained of it in his life-time; nor can I discover, if such error existed, how it could possibly be injurious to him.»

3d. The counsel on both sides, have shewn much industry in collecting authorities and precedents as .to the mode of entering continuances on afieri facias- of elegit not executed, in England., so as to-sav,e the necessity of taking out a wire facias to'revive the judgment. On the part of the defendant it has been anxiously contended, -that this could be effected there only by the means of the sheriff’s making a return on the first execution.- Rut it is evident that the return of judicial-process, not executed, gives no other information to the defendant than that such process had been sued out; and the same knowledge may be collected from the mere act of taking it out, without such return being made by the sheriff. But admitting the practice in England to be as has been insisted on by the defendant, it can be of no avail in this instance unless it has been adopted amongst us. The practice of Courts of justice forms their law. I do not ground my opinion on this point on the certificate of Mr. Hennesey, although it strengthens my former impressions; it is bottomed on my own experience at the bar for above twenty-five years in the middle counties, and nearly twenty-five years on this bench; and I am well satisfied, that many valuable titles to lands depend on the practice of the plaintiff’s, attorney making return on writs of fieri facias, that vice comes non mi-sit breve, and grounding alias and pluries Ji. fa’s, thereon, after the expiration of the year and day from the judgment. To' this practice I alluded in Young v. Taylor, 2 Binn. 228, when I asserted that the mode of keeping judgments alive by issuing an execution within the year and day, thereby superseding the necessity of issuing a scire facias under the statute of Westminst. 2, was not abolished by the act of 4th April 1793.

4th. I have no doubt that the sheriff’s return to the third plliries Ji. fa. issued on the scire facias, signed by himself and his deputy in these words: « September 12, 1811. Le- •« vied as per inventory, and then forewarned By the marshal « not to proceed any further in the levy,” accompanied with an inventory headed thus: “ Levied on the following, goods « in the name of the whole,” and; specifying sundry articles of furniture, &c.-, was good and sufficiently certain.'

It will be considered hereafter, whether the defendant, as marshal or otherwise, was legally justifiable in retaining the* possession of these goods against the fieri fiadas in the sheriff’s hands. If it shall appear that he was not justifiable herein, and that he has paid over the 'money arising from the sales to one not entitled to receive it, after receiving notice from the party entitled to the proceeds, an action for money had and received will lie against him by such party.

5th. I cannot agree that such proceedings have taken place in the. Circuit Court of the United States, as will bar the plaintiff from recovery in this action.' It is true, the rule to shew cause why Mr. Lezvis should not take the-money out-of Court was discharged, but it was without prejudice to his right to resort to the marshal. It is one thing to deny summary relief to a suitor, under the general powers vested in a tribunal of justice; another thing to declare he has no cause of action where the merits of the whole case have been fully discussed. Where matters of fact are much complicated; where Certain things are asserted on one side to have existed, which have been as- confidently denied on tlxe other side, Courts seldom interpose their extraordinary jurisdiction-,-but leave the party to his remedy in the ordinary..course of justice, Where facts are constitutionally decided by. 'it jury. When the Circuit Court expressly determine that the right of Mr. Lezvis to resort to the marshal should noi be prejudiced by their order, it is perfectly clear that-they could not mean to bar him. The payment of the money to Mr. Dallas for the use of Escaralté, was not decided by the Court, but was made at the risk of the marshal.

6th. Little has been urged in the argument as to the executions issued by ■Verdier, except so far as the papers connect his name with Escaralté* Indeed, Mr. Levy, his attorney* has expressly disavowed any claim to his supposed balance of four hundred dollars, out of the proceeds of sale of. these goods.

As to Escaralté, he obtained judgment against Fitzsitnr mans for $58,64-3 3 cents in the Circuit Court of the United States foffthis district, on the 9th June 1801. Afterwards, on the 7th April, 1803, Mr. Fitzsimmons signed an agreement, that executions might issue in this suit without a scire facias to revive the judgment, notwithstanding the expiration of a year and a day from the time of judgment. In pursuance hereof, on the 17th September, 1803, a. fieri facias, issued re-returnable October Term 1803, upon which a regular return was indorsed, “ Levied on the real estate of the defendant as appears by the inquisition.” The inquisition was annexed to the writ, whereby it appeared that Mr. Fitzsimmons's house and lot in Chesnut street, levied on by the sheriff, had been condemned by the inquest as insufficient to pay the debt and costs within seven years. Judging merely on the face of this return, there cannot be a doubt that the real estate of Fitzsimmons only was levied upon. But if a doubt could have existed in the minds of the most incredulous, it must be removed by the return on the venditioni exponas to April Term 1804. It is thus indorsed:-“ Received, 28th February 1804, at 9 o’clock, P. M. and levied on house- “ hold furniture agreeably to inventory, at 10 o’clock on the “ same day.” It is also observable, that the vend, recites only the levy on the house and lot, without making any mention of the furniture. The return on this vend, and also on Verdier's, states, “ that by virtue of these writs, he had “ taken in execution the goods, &c., contained in the an- “ nexed inventory, and had sold the same for $2,388 85 cts.”, which necessarily could not have been filed in the clerk’s officeiuntil after the sale was rhade in March, 1811. But although on the fieri facias to October 1803, at the suit of Verdier, the house, lot, and furniture, were returned as levied on, without any inventory taken of the furniture, an alias fi-fa. was taken out to October 1804, whereon a levy is returned to have been made on the house and lot in Chesnut street alone. This would seem to be an abandonment of the former levy on the furniture, and no explanation was given of the cause of this new fieri facias and levy. The costs appear to have been afterwards paid. Nothing can be more clear, than that personal property cannot be seized in execution upon a writ of venditioni, or that such property cannot be levied after the day of return of a writ of fieri facias. But it -has.,been said, that it appears by the marshal’s docket, and by, a small paper annexed to the fieri facias, issued in Esca ralte’s suit, (not signed by the defendant,) that the furniture of Fitzsimmons was levied upon on the 17th September 1803'. Suspicious circumstances attended these papers; and it appeared that the entry of the levy on the marshal’s docket in his hand-writing, was not made at the time of the transaction. It also appeared, that the marshal took from the clerk’s office all the executions in Verdier’s and Escaralti’s suits, and whether they had been returned in the same plight in which they were received by him, was highly dubious. The Chief Justice submitted it asa fact to be decided by'the jury, whether the marshal had levied at the suit of Escaralti, on the goods of Fitzsimmons, and made a return thereof before thd day on which the pluriesfi- fa. of Mr. Lewis came to the hands of the sheriff, and if they should be of opinion that the levy and return were so made, he instructed them to find for the defendant; but, if otherwise, for the plaintiff. The verdict of the jury establishes the fact, that the levy was not duly made and returned on the fieri facias of Escaralti; and therefore I feel myself bound to conclude that the defendant, in his political character of marshal, was not justified in taking possession of these goods after the death of Mr. Fitzsimmons,-which happened on the 26th 'August 1811,and in holding and selling them adversely to the execution of Mr. Lewis.

7. But it has been moreover contended, that the agreement made between Messrs. Craig and Clymer and Mr. Dallas operated, under all the circumstances of the case, as a transfer of the furniture to the marshal to secure Escaralté’s debt, and rendered it liable to be sold by him at any subsequent time for that purpose. To this proposition I am compelled to withhold my assent. When the agreement was made we know not. It was drawn up by Mr. Dallas without date. Neither the marshal nor Fitzsimmons were parties thereto. It recites that the marshal had levied on the personal property of Thomas Fitzsimmons, (among other things) valued at three thousand dollars, and had advertised the same for sale, and it was agreed that the property should remain in the hands of Mr. Fitzsimmons, to be delivered on demand to the marshal, to be sold towards satisfying the executions. If the property should be taken by any other executions, or not delivered by Fitzsimmons to the marshal on demand, then Messrs. Craig and Clymer, jointly and severally promised to “ pay to Mr. Dallas, for the use of Escaralti,the above sum of three’thousand dollars, or in proportion for any part taken as aforesaid, or not delivered on demand.” The agreement was manifestly made for the indemnity of the marshal. So far was it from being intended as a transfer of the furniture, on the delivery of the goods to the marshal, it is stipulated that the possession shall continue in Fitzsimmons, and if it shall be taken by subsequent executions, there is a joint and separate engagement to pay the three thousand dollars, or the proportion of any part so taken and not delivered on demand. Here no demand has been shewn to have been made on Fitzsimmons in his life-time, for the goods under the guaranty. If they had really been levied upon on the 17th September 1803, as the marshal’s docket supposes, they had been permitted to remain in the hands of Mr. Fitzsimmons nearly eight years until after his death, thereby giving him a false credit to the world, and the possession not resumed; but if they had been not so levied upon, and Mr. Smith had done what was incumbent on him to do, then the remedy of Es~ car alté would be on the collateral guaranty. On this remedy I give no opinion; but I think the agreement created ns trust in the now .defendant individually, and that it related merely to the marshal in his public character.

Upon the whole matter, therefore, I am of opinion, that the verdict is not against law or evidence, and that the motion for the new trial be denied. .

JBrackenridge J. gave no opinion, having been indisposed and absent during part of the argument.

New trial refused.  