
    [Philadelphia,
    March 31, 1823.]
    PEDDLE against HOLLINSHEAD. COZENS against HOLLINSHEAD.
    If the sheriff return to a levari facias struct off for a certain sum, and sheriff could not mate a title, therefore remains unsold, the plaintiff may issue a new execution.
    The privilege of a stay of execution under the appraisement act of 28tlvlííZí’e/i, 1820, expired with that act, and existed afterwards, in relation to executions issued while that act was in force, only as modified by the act of the 2fth March, 1821. If the legislature gives an- indulgence of a stay of execution to a debtor, it may af-terwards modify or withdraw it.
    An onjission in a levari facias of the command to levy the debt, is a clerical mistake, • and may be amended after error brought, by the court above.
    These were writs of error to the District Court for the city and county of Philadelphia, to remove the judgments and proceedings in two suits, in which Hollinshead, the defendant in error, was plaintiff, and the plaintiffs in error, respectively, were defendants.
    The first of these suits was a scire facias upon a mortgage, brought by Edmund J. Hollinshead, assignee of Joseph Ball, for the use of Jacob Eidgway against Joshua Peddle, returnable to June Term, 1820. Judgment was entered for the plaintiff, for 2261 dol-Jars, on the 19th July, 1820, upon which a levari facias was issued, returnable to December Term, 1820. On the 22d September, 1820,, an ^inquisition was held under this writ, by which the premises were valued at 4500 dollars:- and the writ was returned with the following indorsement: “ September, 27th, 1820, struck off for 3000 dollars, and sheriff could not make title:' therefore remains unsold. Thomas Elliott, Deputy Sheriff.” An alias levari facias was issued returnable to December Term, 1821, on which an inquisition was held, valuing the premises at 3000 dollars: and the writ was returned by the sheriff as follows: “Sold October 15th, 1821, to Jacob Eidgioay, for 1050 dollars,, which money the sheriff has ready, &c. Caleb North.”
    
    The other case was a scire facias upon a mortgage, brought by Edmund Hollinshead against A: chibaldJ. Cozens, and Henry S. Cozens, to June Term, 1820, in which the same questions were involved, though the circumstances were somewhat different. Judgment was entered for the plaintiff on the 3d October, 1820, for 3438 dollars, and a levari facias was issued to December Term, 1820. On the 7th November, 1820, an inquisition ' took place by which the premises were valued at 10,000 dollars: but the sale was staid by order of the plaintiff’s attorney, and on motionand affidavit of plaintiff this inquisition was set aside. An alias levari facias was 'issued, returnable to March Term, 1S21, and on the 30th Decem - ber, 1820, another inquisition valued the premises at 7500 dollars. The return to this writ, dated January 15th, 1821, was “struck off for 6050 dollars, and, sheriff could not make title, therefore remains unsold.” signed Thomas Elliott, for sheriff. Apluries levari issued to December, 1821, another inquisition was held on 26th December, 1821, valuing the premises at 6000 dollars. On which the sheriff returned, sold to Jacob Ridgway for. 3600 dollars, December 26th, 1821.
    Motions were made in the court below on behalf of the defendants .respectively”, to set aside the writs, the inquisitions, and the sales of the property to Jacob Ridgway, but were overruled by the court.
    The following is an abstract of so much of the writ of levari fa-cias, as is material, issued in the case of Hollinshead v. Peddle: and the, same form was used mutatis mutandis in Hollins-head v. Cozens.
    
    The commonwealth of Pennsylvania to the Sheriff of Philadelphia county greeting:
    We command you, that without any other writ from us of the lands and tenements which were of Joshua Peddle, &c.,to wit, &c. together with the hereditaments and appurtenances in your bailiwick, as well as a certain debt, &c. lawful money of the United States, with the lawful interest thereof, from the &c. as also, &c. for costs which said, &c. with the interest and costs aforesaid. Edmund J. Hollinshead, &c. lately in our District Court, for the city and county of Philadelphia, before our judges at Philadelphia, in the &e. by the consideration of the same court recovered against the said premises above described, with the appurtenances to be levied by the default of the said Joshua, in not paying the said sum of, &c. according to the form and effect of an act of assembly of the commonwealth of Pennsylvania, in such case-made and provided.
    And have you there moneys before our judges at Phildelphia, at our District Court for the city and county of Philadelphia, on the first Monday of March next, to render to the said Edmund for the debt, interest, and costs, aforesaid.
    And have you then and there this writ.
    Witness, &c.
    The following errors were assigned in Peddle v. Hollinshead:
    
    1. That by the sheriff’s return to the first levari facias, it appears that a sale of the premises levied was made, and that therefore, the premises did not “ remain unsold.”
    2. That the premises levied on having been sold under the first levari, the alias levari was irregular and void, and ought to have been set aside by the court.
    3. The alias was issued before the expiration of one year from the return day of the first levari.
    
    4. The sale alleged to have been made under the alias, was void, the premises having been already sold by the sheriff.
    5. The sale was also void, because it was for less than two-thirds of the valuation or appraisement, under the levari returnable to December, 1830.
    6. That no writ commanding or empowering the sheriff to expose the premises to sale, ever issued in this case; the paper on which he acted is erroneous in recital, defective in authority, unintelligible and absurd.
    The same errors in substance were assigned in Cozens v. IPollins-head, ■ the only difference being that in Cozens v. Hollinshead, the first levari and inquisition were set aside, and the subsequent proceedings were on an alias and pluries.
    
    
      Rawle, for the plaintiff in error.
    
    1. 2, From the return of the sheriff to the levari, it appears that a sale was made, and therefore the premises could not remain unsold. The return of “ struck off,” is a return of a sale: the purchaser was bound, and both the plaintiff and defendant had an interest in the sale; The subsequent part of the return also shows it. It is that “ the sheriff could not make a title.” It is not in the sheriff’s power to decide that it is no salé, and that there is no title in the defendant. He ought not to be permitted to cast a shade on the title. This return does not state that the purchaser refused io take the premises, or objected to the title. Indeed, whether there was any title in the defendant or not, the purchaser at sheriff’s sale is bound by his contract. Smith v. Painter, 5 Serg. & Rawle 223. If it was a return of sale the exigence of the first writ was completely complied with, and the alias levari facias and sale thereon were irregular and void, and the court below erred in refusing to set them aside.
    3. and 4. By the act of assembly of the 28th March, 1820, sect. 1. 2, in case lands levied upon by a levari facias, cannot be sold at public vendue, for two-thirds or more of the appraisement made by the inquisition, the sheriff shall not make sale of the premises, but shall return the same, and all further proceedings, for the sale thereof shall be staid for one year from the return day of the levari facias. Pamph. Laws, 188. The execution was issued while this law was in force, returnable to December Term, 1820, an inquisition was held, and the property appraised at 4500 dollars. ■The property was offered for sale, and no sale, as is alleged, was completed. Under this act no further proceedings could be had till after December, 1821, one-year from the return day of the le-vari facias, and, therefore, the alias levari facias was irregular. •Besides, the property did not sell on the alias for two-thirds of the appraisement. But it is said, that the act of 1820 had expired, and that the second proviso of the act of the 27th March, 1821, qualifies the privilege of the defendant, and has not been complied with. It enacts, that in every case where the real estate has been or hereafter shall be taken in execution, and appraised, before or after the passing of this act, the defendant shall not have the benefits of the same, unless he shall on or before the first day of August next, and every six months thereafter pay to the plaintiff, the amount of interest due on such judgment. But in the first place this proviso applies only to the act of 1821: the words are, u shall not have the benefits of the same,” which refer to “ this act.” In the next place it ought not to be construed to extend to a case in which executions had issued' under the former act. By the act of 1820, the defendant had acquired a vested right to a stay of proceedings for one year from the return day of the levari facias; and such right acquired while an act was in force, remains after the act has been repealed, or is expired. Couch v. Jeffries, 4 Burr. 2460. Bedford v. Shilling, 4 Serg. & Rawle, 401. Fletcher v. Peck, 6 Crunch. 88. Calder v. Bull. 3 Dali. 396. Even if the legislature, by the proviso of the act of March 27th 1821, intended to interfere with cases completed under the provisions of the. act of 1820, in which the party had a vested right, they could not deprive him of it. The court will intend that the legislature did not mean to affect a vested right, or to have a retrospective effect, but contemplated only proceedings de novo.
    
    
      5. The sale u'nder the alias was void, because it was for less than •two-thirds of the' appraisement on the levari. The second valúa-lion was a nullity, as the first remained not set aside or annulled by the court.
    [The court intimated that the decision of the court below, being matter of discretion, was not the subject of a writ of error ]
    Authorities may be shown in which the court entered into considerations of this tort.. In Pearson v. Morrison, 2 Serg. & Eawle, 2Q, this court on a writ of error considered the propriety of the court’s proceeding below in setting aside a levy, execution, and sale, on motion of the plaintiff’s attorney, though it was said by the court, that the Court of Common Pleas possessed discretionary power over its own pz’oeess. He also cited Clark v. Baker, 3 Serg. & Eawle, 470. Duncan v. Robeson,' 2 Yeates, 454, Burd v. Dansdale, 2 Binn. 92. This was. not a case of pure discretion in the court below: for the court were bound by the act of asssemby, and erred in giying a wrong construction to it.
    •6. The writ of levari facias is insensible and inoperative. It does not command the sheriff to levy. Unless it can be amended by the prsecipe, it is altogether erroneous.
    
      MlIlvaine, contra.
    1. and 2. It is not sufficient to constitute a sale that the property should be struck off: all the conditions of sale must be complied with before a sale can be said to be made. The sheriff’s return here is in substance that no sale was made. The act of 1705, sect. 8. (Purd. Dig. 198) directs the sheriff in case the lands cannot be sold on a levari facias, to return that he exposed them to sale, and that they remained unsold for want of buyers: but this is put only by way of example, and he may make a special return according to the facts. In Zantzinger v. Pole, 1 Dali. 419, the court say, that if the property is not paid for after a sale, the sheriff’s return should be that “ the premises were knocked down to A. B, for so much, and that the said A. B. has not paid the purchase money, and that therefore the premises remain unsold.” The return of the sheriff must show obedience to the writ or a good excuse. 6 Com. Dig. 228, Return D. 1. The sheriff cannot be compelled to alter his return in matter of fact. Vastine v. Fury, 2 Serg. & Eawle, 430. All the court can compel the sheriff t.o do is to make a certain return. This return is sufficiently certain to give the party a remedy against the sheriff. The substance of it is, that the property remained unsold: the reason he could not make a title is entirely with the sheriff But if the sheriff found that he could not make a title it was his duty to vacate the sale.
    3. and 4. The case falls completely within the proviso of the act of 1821: the interest was not-paid, as is thereby required, and therefore the defendant is debarred of its benefits. It is argued that the legislature did not mean to act retrospectively, but the language'of the act is explicit on that subject. It embraces “ every case where real estate has been, or hereafter shall be taken in exe-cutlon or appraised before or after the passing of that act.5’ It is; also objected that the act of1820 conferred a vested right, which could not be defeated by the expiration of that act, or the modification of the act of 1821. But the act of 1821 merely restored to the creditor a right which had been suspended by the former aet If injustice was done by the legislature, it was to the creditor in the first instance, and they afterwards removed the barrier to the prosecution of his rights. The legislature however has always exercised, a power over process. Besides, the act of 1820 did not exist after the 27th March, 1821, except as modified by it: and acts begun un-. der a law which is expired or repealed cannot be continued. 3 8m. Laws, 522 note, 4 Yeates, 394.
    5. In the court below, on the question of the validity of the sale in October, Í821, much evidence was adduced of which the court here is not informed by the record. It was decided on motion, and it is a matter for-the sound discretion of the court below, whether to set aside a sale or not. It cannot be ' inquired into on a writ of error. This court cannot inquire on errror into the abuse of process or misfeasance of the sheriff acting in obedience to the writs issued from another court. If the sheriff has sold when the law forbade it, which was by no means the case, he is responsible for it: but this court cannot inquire into the sale if the writs be regular.
    6. As to the form of the levari facias, there was an error in leaving out the words, “ you euase to be levied,” which the court will amend if necessary, though it may well be contended that enough appears from the whole writ to show- a command to the the sheriff. If it be a defect it is cured by the statutes of jeofail. The prxcipe orders the prothonotary to issue a levari facias: and if he has committed a misprision, the court will disregard it. Amendments mav be made after as well as before writs of error. 4 Yeates, 185,- 479, 205. 4 Dali. 267. 1 Dali. 197. 1 Linn. 486.
    
      
      (a) Tlje argumentwas applied to the case of Peddle v. Hollinshead, but the same principles are involved in both eases.
    
   The opinion of the court was delivered.by

Dumoan, J.

The points in both cases are the same, and have been' so considered in the argument. I am decidedly of opinion, that the only questions which can be considered by this court, on these writs of error,- and on the specific errors assigned are, whether the writs of levari facias on which the sales were made, were warranted by existing laws, and whether this was in fact a command to sell, or that omission can be taken advantage of in error, and if it can, whether the writ can be amended by this court. The material question depends on the construction and operation of the two acts of assembly, one of the 28th March, 1820, 7 Bioren’s St. L. 335., and the act of 27 March, 1821, page 423. The first directs, “on execution, appraisement of land shall be had, and if jt will not sell for two-thirds of its appraised value, sheriff shall so return, and further proceedings be staid for- one year.” The act to continue in force one year and no longer. The second continues the first four sections of the act of 1820, for one year, provided, “that In every case, where real or personal estate has been, or hereafter shall be, taken in execution or appraised, before or áfter the passing the act, the defendant shall not have the benefit of the same, unless he shall, on or before the first day of August next, and every six months thereafter, pay- to the plaintiff or plaintiffs, his or their agent or attorney the amount of interest, due on such judgment or judgments,” and the argument is, that inasmuch as there had been an attempt to sell-, and a return of unsold for want of buyers, while the act of 1820 was in full force, and as that act declared, that when the property could not be sold for two-thirds of its appraised value, the proceeding shall be staid for one year from and after the return of the writ, that the act of 1820, as to such cases, was necessarily extended to one year after the return of the writ. That the right to a stay of sale was a vested right, nót affected by the expiration of the law, and that the, legislature could not add the qualification of payment half yearly, to an indulgence which had been previously granted without any condition. This indulgence cannot be considered asa vested right, which neither repeal nor expiration of the law could affect For certainly, if the legislature could constitutionally grant the indulgencé to the debtor, and suspend the creditor’s right of recovery, they could restore it by á Subsequent law, and take off the suspension. It was a favour granted to the debtor, at the expense of the creditor ; a favour which if the legislature could confer, they could withdraw. The act of 1820, standing alone, without any continuance or prolongation by the act of 1821, expired by its express limitation in one year after Its passage, and would have left the law and the courts of justice open to the creditor, as much as if it had never passed. It placed the creditor and debtor in statu quo.

If a temporary statute expires, all that has been done under it ceases with it; unless a perfect and complete right is acquired or title vested under it. An offénce against a temporary statute cannot be punished after the expiration of the act, unless particular ■provision is made for that purpose. 7 Wheat. 551; nor any seizure made after its expiration, though the act giving the right had occurred before. 6 Crunch. 208. Nor can a sentence of condemnation be affirmed if the law has expired, although sentence of condemnation and money paid over before the expiration- of the law, So where privileges attached by' proceedings actually commenced, and the law is afterwards, repealed, as under insolvent debtor’s act, after the prisoner complied with every regulation, and proceedings continued without his consent to a day subsequent to the repeal of the act, he cannot be discharged, although he had actually assigned his property. Miller’s Case, 1 W. Bl. 451. 3 Burr. 1456.

There is no difference, in this respect, between a statute expiring by its own limitation, or repealed. The act of 1821, was a substitute for the act of 1820. The first act was probationary, or experimental, to see bow the indulgence would work for one year. The latter act. revising the whole subject matter of the former, and indirectly intended as a substitute for the former one, though the former one had been not temporary, must, in presumption of law, as well as reason and common sense, operate to repeal - the former. Bartlett v. King, 12 Mass. 545. Another act passed the 2d April, 1822. 7 Bioren’s St. L. 5"68, continues in form the act of 1821, for the appraisement of estates taken in execution, until the 1st November, 1S22, thus giving the sense of the legislature, that this act was the only one in force. On the expiration, the legislature thought it Would be unjust to deprive the creditor of his legal remedies, for the Recovery of his debt, unless the debtor paid him at least the interest, and it never could be the intention of the legislature, to postpone the vigilant creditor, merely because he had made an unsuccessful attempt to sell for two-thirds the amount of appraised value.

As to the exception, that no further execution could issue, the sheriff having returned a sale; the' sheriff did return an attempt to sell, knocking down of the premises, but this had been ineffectual, because he could not make a title therefor, and he, therefore, returned it unsold for Want of buyers. This might he a safe return by the sheriff'in point of fact, for it Was not a fair sale, if it was represented that the title was good, and unknown to every one there was a latent defect of title; as if debtor had conveyed before mortgage or judgment, then it would be a just return. But he did return it unsold for want of buyers. ■ He might be liable for his false return, but still the plaintiff could issue a new execution, leaving all who might suppose thpy were aggrieved by this return, to their action against the sheriff. The sheriff not having received the money on an- effectual sale, there could be nothing to prevent plaintiff from going on to complete his execution. If the sheriff had returned that he had sold, but could not make a title, this might have been a sufficient return, but returning it unsold, this enabled the plaintiff to take out a new writ. See 1 Peters, 245. If the money was not paid, he must return it unsold for want of buyers. This return certainly showed the exigency of the writ had not been complied with. The plaintiff had not the fruit and end of his execution, and was entitled to a new one. If the purchaser did not comply with the terms of the sale, it was the same thing as if it had not been struck off, the remedies of all parties against the bidder not complying being open to them. The omission in the writ, directing the sheriff to levy the debt, is a mere clerical mistake, which thepra?-cipe would cure. The writ commands him to have the money, but does not, as it ought, command it to be levied off the mortgaged premises. The clerk should alter the present form of execution, by the form used in the Supreme Court.

Erroneous teste offieri facias, the execution is amendable. Baker v. Smith, 4 Yeates, 185. Berthon v. Keely, 4 Yeates, 205. So teste and return of venditioni exponas. Shoemaker v. Knorr, 1 Dall. 197, and the amendments have been made iti the court of errors, as in Black v. Wistar, 4 Dall. 267, where judgment and fieri fa-cias differed, this was a mistake of the clerk, not of the party, and may be amended after error brought by the psercipe. And the court will issue a certiorari to bring up the prsecipe to amend by. In Prevost v. Nichols, 4 Yeates, 483, the power of the court above to amend was asserted and exercised. In matters arising from the mere carelesness of the clerk in process, it is to be observed, that those things which are amendable before the writ of error brought,. are amendable after the writ of error brought, and if the Inferior Court doth not amend them, the Supreme <. ourt may amend them; and this has been allowed in times when courts were not so liberal in granting amendments as at the present day. Blackmore’s Case, 8 Co. 162. a. But the defendantin error must pay the costs of amendment, Gild. H. C.P. 167, 182, and executions.

Judgment affirmed.  