
    [Pittsburg,
    September 12, 1835.]
    STEWART against STOCKER.
    IN ERROR.
    If an execution has been issued before the stay of execution is expired, it is irregm lar but not void, and its validity cannot be called in question by another exetion creditor who sues the sheriff for the proceeds.
    A sheriff who has money in his hands by virtue of a sale under an execution, but who is tied up from paying it over by a rule of court, is not liable for interest during such period: even though the purchasers have not paid him and may be liable to him for interest.
    Error to the Court of Common Pleas of Allegheny county; in an action of assumpsit for money had and received, &c. brought in that court by John C. Stocker, defendant in error, plaintiff below, against Lazarus Stewart, plaintiff in error. In the court below judgment was rendered in favour of the plaintiff, Stocker.
    
    
      Stewart was the late sheriff of that county, and the plaintiff Stocker having lately obtained a judgment against Anthony Bee~ len and Henry Bosler, joint merchants trading under the' firm of Beelen $? Co. for the sum of five hundred and sixty-five dollars and thirty-three cents, issued a fieri facias thereon and delivered the same to the defendant, then sheriff. Previous to this a fieri facias for the Bank of Pittsburg, against Beelen S' Co. had been put into the hands of the defendant with orders to levy on the personal property of Beelen S' Co. A levy was accordingly made on the personal property which was sold. The plaintiff afterwards applied to the Court of Common Pleas, from which both executions had issued, and obtained a rule on the Bank of Pittsburg to show cause why their execution should not be quashed. This rule appeared to be still depending or, at least, it did not appear that the court had either dismissed or made it absolute. The plaintiff supposing that the execution for the bank was illegally issued, and therefore that he had a right to the money raised by the sale of the goods of Beelen S? Co. which had never been paid over by the defendant, brought this action for the recovery of it.
    The authority under which the execution for the Bank of Pitts-burg was issued, was as follows: The defendant gave in evidence a bond from Beelen S' Co. to the Bank of Pittsburg in the penalty of ten thousand nine hundred and ten dollars, dated the 23d of Jlpril, 1823, with a warrant of attorney to confess judgment thereon, by virtue of which a judgment was entered, on which a fieri facias was issued on the 10th of June, 1823. The condition of the bond was “ that if Beelen S' Co. should pay to the Bank of Pittsburg the sum of five thousand four hundred and fifty-five dollars with interest from the date, being the amount of eight notes, the first seven being drawn by Beelen S' Co., and the last by Henry C. Bosler, discounted in the said bank, all payable at sixty days from their date, (the dates of each note with the endorsers were then specified,) and should pay all notes given to renew the said notes and each and every of them as required, and save harmless and indemnify the said bank in every respect with regard to the said notes, then the said obligation to be void, otherwise of force.” On the back of this bond there was a writing, signed by the endorsers of the notes, certifying that it was at their request and with their approbation that the bond was taken by the bank, and, that they held themselves responsible as endorsers, in the same manner as if the bond had not been taken.
    The following errors were now assigned upon exception taken to the charge of the court.
    1st. The court gave in charge to the jury that the defendant in error having no interest in the judgment or execution of the Bank of Pittsburg against Bosler S' Co., might be admitted to impugn and draw into question the judgment, execution and sale on said execution.
    2d. That the plaintiff might thus impugn those proceedings and draw their regularity into question, notwithstanding his agent, Mr. Poe, had solicited the entry of said judgment and issuing said execution, and prepared and posted up printed advertisements of said sale, and attended and purchased at said sale.
    
      3d. That although the plaintiff, by his attorney, applied to the court from whence the execution issued to set aside said execution, yet he might well impugn all the proceedings on the trial of this action, before any order or decision was made on the said application to the court, and his delay and neglect, in prosecuting this application, did not prejudice him in the present suit.
    4th. That the court, issuing said execution, had power to control and direct the plaintiff named therein, as to what property, real or personal, he should take to satisfy his execution.
    5th. That the assent of the defendants, Bosler <§■ Co., to the issuing execution made no difference, for that the creditor, Stocker, might still impeach and disaffirm this proceeding, and that said Stocker might thus impeach and bring into question the whole proceeding, even after his agent, Mr. Poe, had requested and urged the attorney of the Bank of Pittsburg that the said execution should be issued.
    6th. That although the sale made by the sheriff on said execution was good, and the purchaser might hold the property purchased on paying the purchase money to the sheriff; yet the defendant, Stocker, might recover the money from the sheriff in this action to his own use, to the exclusion of the execution of the Bank of Pittsburg.
    
    7th. The court charged the jury that the Bank of Pittsburg could not in law issue an execution and levy on personal property of Bosler <$’ Co., even with the assent of Bosler # Co., until after default had been made by Bosler <§’ Co. in paying off their notes j any injured creditor may draw this into question, although Bosler Co. do not resist it, and such injured and excluded creditor may recover from the sheriff the money made on the sales.
    8th. The court further charged that it is totally immaterial in law, whether one of the indorsers, with the assent of the bank, and with the agreement of Bosler fy Co. directed the contested execution to issue ; for at the time it issued it could not issue to the prejudice of other creditors, any more than to the prejudice of defendants (Bosler ¿¡r Co.) themselves.
    9th. The court charged, also, that the law watches with the narrowest scrutiny every endeavour by failing men to give preference among their creditors; all preferences are grounds of suspicion, parties benefftted by such preferences will be vigilantly controlled, and regarded with a jealous eye, and is liberal in favour of equalization in the distribution of the funds of insolvents j. strict proof is required of all who claim under preferences.
    10th. There is also error in the charge of the court, directing the jury to allow' in damages the whole of the original judgment of the plaintiff below, with interest upon it from the day of sale. There being in evidence before the court prior uncontested executions to be first satisfied, and also several' other executions delivered to the sheriff- on the same day, so as to surmount the sums made on tbe sales, and afford only a dividend among the last named class of executions.
    
      Boss and M‘Donald, for the plaintiff in error.
    1st Error. The first question turns on the right of a debtor to prefer certain of his creditors, and in what form such preference may be given, and on the right of a third person to call in question the proceedings in a judgment to which he was no party. The law permits preferences. An executor may confess judgment to one in preference to another, and plead that judgment in bar, 1 Vez. 212, 213. Went. off. Ex. 143. An individual may apply his property by way of judgment or mortgage, or by way of conveyance, to the payment of one creditor in preference. Wilt v. Franklin, 1 Binn. 502. Lippincott v. Barker, 2 Binn. 186. There is great difference in debts, and preferences are in strict conformity with morality and justice. If A. confesses judgment to B., with stay of execution for six months, A. may prefer B. by relinquishing the stay of execution, so that execution may issue immediately. But can a third person draw into question the proceedings in an action between A. and B? None but the defendant can question the irregularity of an execution. A judgment in one court cannot be impeached collaterally in another court. Hiester v. Fortner, 2 Binn. 40. Allison v. Rankin, 7 Serg. & Rawle, 271. Lewis v. Smith, 2 Serg. & Rawle, 155, 161, 162. Shirley v. Wright, 2 Lord Raym. 775, Salk. 273. The same principle is decided in 3 Johns. 20. 5 Johns. 53. 8 Johns. 284. In this case the plaintiff moved to set aside the execution for the bank, which was the proper course. This motion, however, he did not prosecute, but brought this suit.
    2d Error. If the plaintiff’s agent requested a sale on this execution, the plaintiff is bound by it, and cannot afterwards question it.
    3d Error. The plaintiff having moved the court to set aside the execution, could not resort to an action.
    4th Error. The court charged that this execution could not legally issue even with the consent of the defendants, Beelen <§* Bosler, and that the parties in this suit might take advantage of it, but we say the execution issued legally. J udgment was confessed for five thousand four hundred and fifty-five dollars, with interest from the date ; no time of payment mentioned, no stay of execution. They cited on this point, Lisle v. Ducomb, 5 Binn. 585.
    9th Error. The court charged that preferences were to be viewed with a jealous eye, and strict proof insisted on.
    10th Error. The court charged that the plaintiff should recover his whole debt, with interest from the term of sale. But if the sheriff received the money, he could not pay it while there was a rule to show cause why the execution should not be set aside, and if he did not receive it, he certainly could not be chargeable with interest. . ,
    Although the notes to secure payment of the amount of which the bond was given were not due when the execution issued, that is immaterial; because the intent was to confess judgment, with power of issuing execution immediately, and the execution was not issued without the consent of the defendant. Further, the notes were merged in the bond, and execution might issue immediately. And the writing of the same date, signed by Poe, and others, proves that this was the understanding of the parties.
    
      Baldwin and Fetterman, contra.
    We deny that the notes were merged in the bond: the sum of five thousand four hundred and fifty-five dollars was more than was due, unless the discount is included. The bank having taken the bond to secure the payment of the notes, could not take out execution until default was made in payment of the notes. In fact the note's were renewed after taking the bond, and the writing signed by Poe and others, indorsed on the bond, shows that it was intended the notes should be renewed. No agreement of Beelen fy Bosler could justify an execution to the prejudice of other creditors: though we do not deny that a debtor has a right to prefer any creditor he pleases. The record does not show that the Bank of Pittsburg takes any interest in this suit, and we say they have no interest. It is stated in the charge of the court that the execution was not issued by order of the bank.
    The court left it to the jury to decide whether the defendants in the execution acquiesced in it. But we admit they also said that such acquiescence was immaterial. Bosler fy Co. had no right to take out this execution to answer their own purposes, which is the truth of the case.
    But it is questioned whether the plaintiff, in this suit, can take advantage of the irregularity in the execution of the Bank of Pittsburg. The plaintiff issued his execution, and demanded from the sheriff the money which he has levied, How, otherwise than by an action, could the plaintiff have his right to the money levied by the sheriff, decided ?
    As to interest, what the court said was, that the money being in the hands of the purchasers, interest should be paid.
   The opinion of the court was delivered by

Tilghman, C. J.

The plaintiff says, that the execution was issued before the notes fell due, and therefore it was irregular and void. We know nothing of the evidence given on the trial of the cause, except what is mentioned in the charge of the court, to which the counsel for the defendant took a number of exceptions.

The great objection to the plaintiff’s action, and indeed, it seems to me to be insuperable, is, that it calls in question the ■validity of an execution issued on a judgment in a court of competent jurisdiction. The judgment on the bond of Beelen Co. to the Bank of Pittsburg was regular; nor does the warrant of attorney, by virtue of which it was entered, make any mention of a stay of execution. The execution was not void. The most that can be said against it, is that it was irregular and erroneous. If erroneous it might have been reversed on a writ of error, or the Court of Common Pleas might have inquired into the matter, in a summary way, and quashed it. But without resorting to either of these remedies, the plaintiff has undertaken to invalidate it collaterally, in this action. This is against all principle. The execution, until quashed or reversed, is good. The sheriff was bound to obey it, and the execution of the bank,' having come first to his hands, had a preference. If two executions are delivered to the sheriff, one after the other, the one first delivered has the preference, and if the sheriff pays the money to the plaintiff in the last execution, the other may maintain an action against him. In that action, the court will inquire into' the fact, which execution came first to the sheriff’s hand; but no inquiry is permitted, which mi girt tend to the invalidating" of either execution, on the ground of error, or irregularity. It was decided by this Court, in Lewis v. Smith, (2 Serg. & Rawle, 142,) that a judgment erroneously entered, is valid, until reversed. And the same principle extends to an execution. It would make strange confusion, if an execution issued by a court of competent jurisdiction, and unreversed, could be investigated and treated as a nullity in another court. To this rule there is one exception, and that is, where a. judgment is entered by collusion between the defendant and plaintiff, in fraud of a third person. For instance, if an executor confesses judgment where no debt was due, with a view of defrauding other creditors, there an action being brought by one of the other creditors, if the judgment be pleaded in bar, the plaintiff may reply that it was confessed by fraud. The same principle was established, on great consideration, in the Dutchess of Kingston’s case,.where a decree of the Ecclesiastical Court was impeached on the ground of fraud. But there is no question of fraud upon this record. No matter of fraud was submitted to the jury. The plaintiff complains, that the execution for the Bank of Pittsburg, was issued before the debt on the promissory notes, to secure the payment of which the bond was given, became due. I shall intimate no opinion on that question — but if the plaintiff has been injured by an improper use of the process of the Court of Common Pleas, that court may do him justice by quashing the execution; and if there should be contested facts which the court does not think proper to decide, it may direct an issue for that purpose. There is no weight in the objection made by the counsel for the defendant, that the plaintiff was not a party to the suit between the Bank of Pittsburg, and Beelen fy Co, There are many instances in which courts will permit a third person, who has been injured by their proceedings, to appear and assert his rights.

There was another exception to the charge of the court, on which it may be proper to give an opinion. The court charged, that if the verdict should be for the plaintiff, he would be entitled to Interest from the time the sheriff sold the goods of Beelen <§■ Co., because the purchasers of these.goods had not paid for them, and, therefore, they ought to pay interest to the sheriff. In this respect, I think the charge was incorrect. The action is not against the purchasers, but the sheriff; and the declaration avers that the sheriff received the money. Now suppose the money is in the hands of the sheriff, (which the plaintiff is bound to suppose,) it was tied up by the rule of court, to show cause why the execution of the bank should not be quashed. The sheriff could not pay the money to either party, till that rule was disposed of; and consequently he cannot be liable to the payment of interest, which is never demandable unless money is unlawfully withheld.

I am of opinion, upon the whole, that the judgment should be reversed.

Judgment reversed. „  