
    [Philadelphia,
    January 22,1836.]
    INGHAM against SNYDER.
    APPEAL.
    1. X fieri facias having been issued and levied on personal property, the plaintiff issued another writ of fieri facias and delivered it to the sheriff but caused it to be withdrawn before any proceedings were had under it. Held, that this was not an abandonment of the preceding levy.
    2. It seems, that the intervention of a term, between the teste and return of judicial process is, not an irregularity.
    This was an appeal by Samuel Yardley, from a decree of the Court of Common Pleas of Bucks County, in the distribution of the proceeds of certain personal property, sold by virtue of a writ of venditioni exponas, in a suit wherein Samuel D. Ingham and John H. IngEam were the plaintiffs and M. H. Snyder was defendant.
    In the court below there were three claimants of the fund, viz:
    S. D. and John H. Ingham, the above named plaintiffs, Samuel Yardley, Jr., the appellant, and Stephen Brock, another execution creditor.
    1. Samuel D. Ingham and John H. Ingham entered judgment against the defendant, M. H. Snyder, on a bond with warrant of attorney, dated February 12th, 1834, in the penal sum of $723 68, conditioned for the payment of $361 84. The following executions were issued upon this judgment:
    February 12th, 1835. Fieri facias issued to April term. Real debt $361 84. Interest from February 12th, 1834. Sheriff’s return “ stayed by order of plaintiffs attorney.” Mias fieri facias issued April 28th, to September term, 1834, No. 1; which was returned, “ stayed by order of plaintiffs attorney.” Pluries fieri facias issued September 8th, 1834, to December term, 1834 — ■ upon which the sheriff originally returned, “ Rec’d $15 on account, and levied upon goods as per inventory, upon file in the sheriff’s office, and stayed by plaintiffs attorney.” This return was afterwards, on motion, amended so as to read, “Rec’d $15 on account, and levied upon goods as per inventory annexed.” The inventory annexed, exhibited house-hold furniture and printing materials.
    The affidavit filed by the sheriff, upon his application to amend the return of the writ, was as follows:
    “ William Field, sheriff, being duly affirmed according to law, deposes and says, that he had no orders to stay the above execution, unless the defendant paid the interest due upon the judgment, under which the above execution issued, and also obtained from Stephen Brock, another execution creditor of the defendants, an agreement to waive any priority of lien he might obtain. And that the said defendant did not pay the said interest, or obtain the said agreement, contrary to his promise, which was relied upon by the sheriff, and that he the said sheriff returned, ‘ levied upon goods as per inventory, on file in the sheriff’s office, and stayed by plaintiffs attorney,’ by mistake, as the facts did not warrant it; but should have returned the execution * levied goods, as per inventory annexed.’
    Affirmed and subscribed in open court, December 12th, 1834.
    (Signed) William Field, Sheriff.
    
    -Charles H. Mathews, Proth’y.”
    
    A second Pluries fieri facias, issued to February term, 1835. This writ was endorsed by the sheriff, “ came to hand December 8th, 1834, at seven o’clock.” It was' afterwards withdrawn from the sheriff by the plaintiff’s attorney, and no proceedings had under it. The plaintiff then issued a venditioni exponas to sell goods, returnable to February term, 1835. The praecipe was dated and filed on the 12th of December. There was no' endorsement by the sheriff when the venditioni exponas came to hand ; the return was, “ sold goods to the amount of $502 09;” and it was accompanied with an inventory of the goods levied upon. These were all the proceedings had upon Ingham’s judgment, until the question arose as to the distribution of the assets in the sheriff’s hands.
    2. On the 8th of December, 1834, Samuel Yardley, Jr., entered judgment against the same defendant, on a note dated the 1st day of January, 1834 — for the sum of $215 56. On this judgment, a 'fieri facias issued the same day to February term, 1835. This writ was endorsed “ came to hand December 8th, at seven o’clock, twenty-five minutes, A. Mand the return made by the sheriff, was as follows: “ sold goods upon venditioni exponas, No. 9, to this term, to the amount of $502 09.” The writ was tested the 8th day of December, 1834; and annexed to it, as returned by the sheriff, was the following order from the plaintiff’s attorney.
    Samuel Yardley, Jr.
    vs. > Fi. Fa. to February term, 1834. ■
    M. H. Snyder. )
    William Field, Esq.,
    High Sheriff of Bucks County.
    Sir:—
    I am instructed by the plaintiff to direct you to levy and sell, without any delay, under the above execution.
    (Signed) Thomas Ross,
    
      Plaintiff’s Attorney.
    
    
      Notice was also given by the plaintiff, Samuel Yardley, Jr., of seventy-five dollars, rent due him from the defendant.
    3. Stephen Brock, another creditor of the defendant, entered judgment against him December 9th, 1833, upon a bond, in the penal sum of $1000, conditioned for the payment of $500. A fieri facias issued on this judgment on the 12th of February, 1834, to April term, 1834, which was returned, “ stayed by order of the plaintiff’s attorney.” An alias fieri facias issued on the 28th of April, to September term, 1834 — which • was returned “ stayed by order of plaintiff’s attorney.” A pluries fieri facias issued on the 8th of September, 1834, to December term, 1834, which was returned “ levied upon goods upon a fieri facias, No. 2, to this term, and stayed by order of plaintiff’s attorney.” A second pluries fieri facias issued December 8th, 1834, No. 5, to February term, 1835. — • There was no endorsement of the time it came to the sheriff’s hands. This writ was returned thus,' “ directed by plaintiff’s attorney to do nothing with this writ until further orders.”
    Upon the return of all the above-mentioned writs, to wit, at February term, 1835, the attorney of Samuel D. Ingham and John H. Ingham took a rule to show cause why they should not be permitted to take out of the sheriff’s hands the amount of their execution. This rule was opposed both by Yardley and Brock; who severally claimed to be first paid out of the proceeds of sale, in the sheriff’s hands. Rules were also entered to take depositions, by S.D.Ingham and John H. Ingham, and also by Samuel Yardley, Jr.; under which the following depositions were taken.
    ■ (Deposition of ’M. II Snyder.)
    
    “ From information that Mr. Ingham’s execution was to be pushed, I went to see Mr. Ingham, and he agreed that if I would pay the interest up to the time, and obtain, from Mr. Brock, an agreement that Mr. Ingham’s execution should have the priority, and would’nt take advantage of Mr. Ingham’s execution, that he would stay his proceedings against me. I told him I thought I could do so. He then gave me a letter to Mr. Chapman as his attorney, the substance of which letter corresponded with the above arrangements. This was about ten days or two weeks before the December term, 1834. I told Mr. Ingham that I thought I could make the arrangement. I came home and saw Mr. Field, and told him what passed between Mr. Ingham and myself. Field told me I must do it. I tried to get the money and the agreement, and I could’nt. I had part of the money, and still thought I could get the rest. I paid a part to Mr. Field, fifteen dollars, after I found I could’nt get the rest of the money, and could’nt make the arrangement with Mr. Brock. I did nothing more. I did’nt tell Mr. Ingham or his attorney, that I could’nt get the money; but I told his attorney that I could. This was all the arrangement that was made with the' sheriff or plaintiff. I felt a good deal worried, and wanted to make the best arrangement I could. After the sheriff had made the levy, and was going to sell, I called on Mr. Chapman, (Mr. Ingham’s attorney,) at his office, for the purpose of getting a stop put to it, if it could be done. He told me he could’nt make any arrangement, or do any thing, because he was Mr. Ingham’s attorney; and that all that could be done was for me to pay the money, or the property must be sold ; and that if any arrangement was to be made, he must make it with Mr. Ingham. I then went to Mr. Ingham, and obtained the letter to Mr. Chapman, referred to in the examination in chief; upon my informing Mr. Chapman that I did’nt think it possible that I could be able to make the arrangement, Mr. Chapman then directed the sheriff to -go on and sell. This was several days after I had seen Mr. Ingham. , I called to see Mr. Field again, and he told me if I would pay the greater part of the money, give my note to him for the rest, and get the arrangement with Mr. Brock, he would’nt sell. It was the. expressed and decided intention of Mr. Ingham'and his counsel, to sell the property, unless the arrangement was made. The interest amounted to about sixty dollars.
    The first levy that was made, was under the execution, returnable to December term. The levy was made several weeks before the return of the execution. The goods were not advertised until after the December term. I had an account against Mr. Ingham of about fifty dollars, all his account against me was embraced in the judgment; the account I had against Mr. Ingham, and what money I paid, would have amounted to more than the interest due at the time I made the arrangement with Mr. Ingham. I said nothing to Mr. Ingham about my accounts. I forgot to mention it. My understanding was, that I was to raise sixty odd dollars in money. Mr. Chapman told me that I ought to have my claim deducted from Mr. Ingham’s account, when the judgment was given ; and that if I had an account against Mr. Ingham, he had no doubt Mr. Ingham would allow it. A considerable part of my account accrued since the judgment was given; the sixty odd dollars were to be paid without any regard to my account. Sheriff Field depended upon my promise to him; the fifteen were paid the Saturday or Sunday preceding the December Court. There were seventy-five dollars rent due from me to S. Yardley. I was to pay one hundred dollars per year. Nothing had been paid from the 1st of April, until the time of sale. The rent was payable quarterly. There was no written lease, it was only a private understanding between us, that the rent was payable quarterly. Mr. Yardley don’t owe me any thing.”
    
      
      Deposition of William Field, the Sheriff of Bucks County.
    
    
      “ I don’t recollect having any orders respecting the first fieri facias. I returned it stayed. The orders given to me respecting the fieri facias to December term, were to go on and sell. I then called on Mr. Snyder, and told him what he had to depend upon. This direction was given to me before Mr. Snyder went to Mr. Ingham. Mr. Chapman told me if Mr. Snyder raised a certain portion of the money, (about sixty dollars,) and got an agreement from Mr. Brock not to take advantage of delays, the proceedings might be stayed. There was no time fixed in which this was to be done. I understood from Mr. Snyder that Brock would agree to make the arrangement, and that Mr. Snyder had forty dollars, and that he could make up the rest; if not, the sheriff and Doctor Mathews would lend him the rest; and I did not know that this arrangement could not be made until it was too late to sell. I depended upon the promise of Mr. Snyder. I understood from Mr. Chapman, that unless this arrangement was made, I must go on and sell; and the matter was left to me to see that it was done.
    Yardley’s fieri facias, and Ingham’s fieri facias to February term, were placed in my hands, before court commenced, on the 8th of December. Mr. Ingham’s fieri facias was placed in my hands by Mr. Purdy, the prothonotary’s clerk. I never received any directions from Mr. Ingham’s attorney, with regard to it — but to levy on property, not levied upon by the fieri facias to December term. This was the same day the fieri facias issued ; and Mr. Chapman said the fieri facias to February term had issued contrary to his orders. This was upon his being informed that the said fieri facias was in my .hands. The orders given to me to levy on other property, I think were given after Yardley’s execution was placed in my hands. I received no orders respecting Ingham’s fieri facias to February term, until after Yardley’s had issued. There was no intention ever expressed or manifested by Mr. Ingham or his attorney, to do otherwise than to sell the property; but it was their desire to have the property sold. When I told Mr. Chapman that Mr. Snyder could not make the arrangement, he stated to me that I must go on and sell; and if there was not time to sell before court, I must sell immediately after. This was a day or two before court. On Saturday before court I had hoped that Snj’der would'make the arrangement, and expected it. I informed Mr. Chapman that day, I had got a part, and Mr. Snyder was not to get the balance at that time. Mr. Chapman said I must take the responsibility on myself; his orders were to go on. I informed Mr. Chapman at that time that I had understood that Mr. Snyder had other property, not levied upon by th e fieri facias to December term, to wit: a gig and harness. This property was at Mr. Pet-tits’. I did nothing with Mr. Ingham’s fieri facias to February term. I placed it in Mr. Chapman’s hands, inasmuch as I did nothing with it.”
    
      Deposition of Joseph H. Purdy.
    
    “ Mr. Chapman gave me a praecipe for a fieri facias to February-term, in the case of Ingham against Snyder, on Saturday afternoon preceding court. Mr. Chapman told me not to issue it until— (these were his words); — I did’nt khow what that meant, until it was afterwards explained, several days after; — and then pointed up. There were some persons present at the time. Upon Mr. ■ Chapman being informed that the fieri facias of Ingham’s had issued, and been put in the sheriff’s hands, Mr. Chapman said that he had intended that it should not issue before the bell rang. I am Mr..Chapman’s student, and also deputy prothonotary. I delivered the execution to the sheriff, in the capacity of student, without Mr. Chapman’s knowledge. I supposed, at the time I was doing it, that I was contributing to the interest of Mr. Chapman’s client. I received no directions from Mr. Chapman at any time, that the execution should not be issued till the bell rung. I never, at any time before, received any directions from Mr. Chapman, not to issue a writ before the ringing of the bell. Ingham’s fieri facias to December term, was issued after the bell rang. I was never informed by Mr. Chapman that it was necessary to wait till the ringing of the bell, before execution should issue.
    I don’t recollect of any instance in which Mr. Chapman ever directed an execution to issue before the ringing of the bell; but there may have been. At the time Mr. Chapman told me not to issue the execution, and pointed up towards the cupola, I was very busy, and did not understand him. To Mr. Chapman’s directions I replied * yes;’ and nothing more was said.”
    The case came up for argument at the adjourned Court, March, 13th, 1835, and was held under advisement until June 5th, 1835; when the court ordered and decreed, that the rules taken by Samuel D. Ingham and John H. Ingham be made absolute. An appeal from this decree of the Common Pleas was entered under the act of 1827, by Samuel Yardley, Jr, one of the claimants who assigned for error:
    1. ' That the court erred in directing the rule taken by Samuel D. Ingham and John H. Ingham, to be made absolute.
    2. That the court erred in not decreeing that Samuel Yardley, Jr. should take out of the proceeds of the sheriff’s sale, the amount of his execution.
    
      Mr. Ross, for the appellant, Yardley:
    1. The record shows that the plaintiffs issued four writs of fieri facias; two of which were stayed by order of his attorney. To the third, also, the sheriff made return that proceedings were stayed, although he was allowed to amend the return: and the fourth was recalled by the plaintiffs. These proceedings raise a presumption that the object was not to obtain satisfaction of the debt, but security for it. Now, it is settled by a series of decisions, that the lien of an execution upon personal property, is divested by an order to the sheriff to stay proceedings. The recent cases of The Commonwealth v. Strembeck, (3 Rawle, 341,) and Hickman v. Caldwell, (4 Raiole, 376,) recognize the doctrine in its fullest extent. [Gibson, C. J. — The rule you have referred to, applies only to cases in which there has been an actual levy. What evidence is there here of any levy, prior to that which took place under the pluries fieri facias ?] The evidence shows, that directions were given to stay proceedings upon that writ, in case the defendant paid the interest due upon the judgment; and the deposition of Snyder proves, that the interest was substantially paid.
    2. Yardley’s execution was regularly issued. It appears by the record, that it was issued on the 8th of December, and came to the sheriff’s hands on the same day, at twenty-five minutes after seven o’clock, A. M. The 8th of December was, it is true, the first day of December term, and the writ was returnable to February term; but this does not render it invalid. In Cashee v. Wisner, (2 P. A. Browne, 245,) the District Court refused to set aside a writ which had been issued, on the morning of the first day of the term, upon which the defendant had been arrested on the same day, after the rising of the court. In England the rule is the same. Maud v. Barnard, (2 Burr. Rep. 812.) Non conslat that the court was not in session at the time the writ issued. The rule, with respect to judicial writs, applies to mesne process. Baker v. Small, (4 Yeates, 187.)
    Mr. W. M. Meredith, for the defendant in error:
    1. It never has been decided that the mere staying of proceedings on a fieri facias, without a levy, prevents the issuing óf a new execution. The second pluries fieri facias was the mistake of a clerk; and its immediate recaí prevented any prejudice to the plaintiff. Young v. Taylor, (2 Binn. 230. Burke v. M’Fall, (2 P. A. Browne, 143.) Alison v. Ream, (3 Serg. <f R. 142.) Bank of Pennsylvania v. Latshaw, (9 Serg. R. 9.) Tidd, 390.
    2. Yardley’s execution was invalid, because a term was omitted. The sheriff’s deposition proves, that the writ was delivered to him before the sitting of the court; which is the commencement of the term. The point for which Baker v. Smith is cited, was not decided by the court. It is said by counsel arguendo. But this is not merely the case of a writ returnable over a term. It appears by the record, that the judgment was entered on the 8th of December, to December term. How could this take place, before the court had commenced its sitting ? If the judgment was regular, the execution must be irregular, since it certainly issued before the meeting of the court.
   Per Curiam.

The recaí of the second pluries fieri facias, before action had on it, restored matters to the footing on which they stood before it was issued; and prevented it from being, as it might otherwise have been, an abandonment of the preceding levy. It was intended not to be an actual abandonment, but to seize on property not before seized — a most unheard of proceeding, and one whose consequences could have been averted but by relinquishing it at the threshold. By reason of the recal, too, it would be unnecessary to inquire whether the execution were void, by reason of having been issued before the sitting of the court on the test day; but the point presents no difficulty; for, granting for the moment, that the term begins with the actual sitting of the court, still it is proper to say that, although it is otherwise in respect to mesne process, the intervention of a term between the teste and return of judicial process, is not even an irregularity, because it gives the defendant no day in court. The lien of the execution, therefore, was not impaired.

Decree affirmed.  