
    PENN against MEEKS.
    A motion had obtained the sanction of this court, in May Term, 1805, that the sheriff of Cumberland, bring into this court, money alleged to be levied by him on an execution in this cause, in his hands against James Meeks. A motion was now made, that [*] the sheriff' pay the money over to the plaintiff. The case was this: On a fieri faeias issued in
    this cause, against James Meeks, the sheriff returned, that he had levied on the lands and goods of the defendant, on which a venditioni exponas issued, to which the sheriff returned, that he had sold the lands and goods, and paid over the money therefrom, to Abraham Sayre, the plaintiff in another execution issued against Meeks, which execution had been issued out of the Court of Common Pleas, in the county of Cumberland, and which was prior to [112] the execution in this cause. It appeared that the judgment in the Cumberland Pleas, on which the befoi’e mentioned execution had issued, was confessed before a judge at his chambers, in vacation, that is, on the 18th of August, 1803, as of the Term of June preceding. The judgment in this cause was not obtained till May Term, 1804, nearly a year after. It appeared, however, that the judgment in Cumberland, was intended to be entered up, under the act of the Legislature, passed the 20th of February, 1794, Pat. 454, which authorizes the appearance of the defendant, in open court, and on motion of the plaintiff or his attorney, confessing a judgment. This being done in vacation, it was contended, by Mr. White, on the part of the plaintiff in this court, that the statute not having been strictly pursued, the judgment was void, and so to be considered by this court. It was also contended, on the same side, that the judgment was fraudulently obtained, and therefore, void for that cause, and affidavits read in support of the fact.
    
      Mr. Orane; for the sheriff,
    contended, first, that the'judgment in Cumberland was a valid judgment; that the case in 2 Lord Ray. 850, proved that a judgment might be entered in vacation by a judge at his chambers, on confession; that the Common Pleas of Cumberland had recognized it as a judgment, a motion having been made to quash the execution issued on it, on the ground of defects in the judgment, which the court had refused.
    [*] Mr. Leake, on the same side,
    said, that when the term begins, it continues on to the next term, and that a judgment entered in vacation, relates to the preceding term; that, therefore, the judgment in the Common Pleas of Cumberland, might be considered as a judgment entered in term, in support of which he cited 6 Mod. 184, 191-
    
   Kirkpatrick, C. J.

— Said that he considered the judgment in Cumberland wholly void; and, therefore, was of opinion, that the plaintiff was entitled to his motion, that the plaintiff was entitled to his motion, that the sheriff pay over the money to him.

Rossell, J. — Was of the same opinion; he considered the judgment of the Cumberland Pleas, a mere trick.

Pennington, J.

— Said that he had the misfortune to differ in opinion with his brethren; he took it, that this court would not, in this summary way, on a collateral question, arising on motion, try the fact of fraud, in obtaining a judgment in another court, nor would it treat the judgment of another court as void, that was merely voidable. This, then, brought up [113] the inquiry as to void and voidable judgments; the law as to which, he took to be, that erroneous and irregular judgments obtained in a court, having jurisdiction of the suject matter, are voidable only, and cannot be considered ipso facto void. But in cases where the court rendering the judgment, hath no jurisdiction of the cause, and the whole proceeding is coram nonjudice, there is really no judgment; the proceeding, in such cases, is not only voidable, but wholly void. This principle he took to be illustrated by the following authorities: 10 Coke, 76; Carth. 274; 2 Salk. 674

In the case under consideration, the Common Pleas of Cumberland had jurisdiction of the subject matter; an actual judgment was rendered and recorded in the book of judgments, and signed by a judge.

The book of judgments under our practice, he said was in lieu of the judgment roll. The Court of Common Pleas recognized it as a judgment. This being a subsisting judgment, the sheriff [*] was bound to execute the writ of execution issued thereon; and this court ought not, in his opinion, to jeopardize his interest by compelling him to pay the money twice over; for which reason he was of opinion that the rule be refused.

Buie allowed. ■

Cited in Den, Newcomb v. Downam, 1 Gr. 135; Stewart v. Walters, 9 Vr. 276. 
      
       Vide opinion, post, 39S.
      
     