
    Pennsylvania v. Abraham Kirkpatrick and Samuel Menough
    An inquisition of a forcible entry and detainer, taken before two justices of the peace in Allegheny county, being removed by certiorari into the county court, instead of traversing the inquisition, and trying it by a jury, the counsel on both sides, presented the following written agreement to the court, 8th March, 1794.
    
      1 Salk. 144.
    2 Hawk. 409
    1 Salk. 150.
    3 St. L. 94.
    2 T.Rep. 89.
    
      3 St. L. 94.
    
      Penn. Const. v. 8.
    2 Hawk. 407-8. 4 Comm. 316. 1 L. Ray 469, 580. 2 L.Ray 938, 1452. 1 Bac. 349-57. Doug. 721, 2 T. Rep. 89. 1 Burr. 488. 1 Burr. 2457-60, 2522.
    
      2 T. Rep. 90.
    
      
      5. 6. W. & M. § 5.
    1 St. L. 171, § 13.
    § 11.
    3 St. L. 94.
    
      Journals of Convention, 17th February 1790. p. 104-5.
    ‘‘Agreed, that a verdict for the Commonwealth be entered, on this inquest, subject to the opinion of the court on the following case.
    
      3 St. L. 94.
    4 Burr. 2457. 2 T. Rep. 89, 90. 2 Hawk. 407.
    
      Alexander Fowler, the prosecutor, being seized of the premises mentioned in the inquisition, and in actual possession of the same, judgments were entered against him, upon which executions issued, the premises were seized, condemned, and sold by the present sheriff, and a deed was executed by him to Abraham Kirkpatrick, 
      the purchaser and one of the defendants, (prout judgment, execution, and deed). The sheriff, after the acknowledgment of the deed, went to the premises with Abraham Kirkpatrick, Samuel Menough, and others, broke open the door of the mill, in which there was no person, and gave possession of the mill to Abraham Kirkpatrick, who left Samuel Menough in possession for him, as his tenant. Alexander Fowler entered, and forcibly turned Samuel Menough out of the mill, and held the possession. The sheriff, after this, returned to the premises, together with Abraham Kirkpatrick, Samuel Menough, and others, who attended the sheriff, by his order; and, with force and arms, broke the dwelling house of Alexander Fowler on the premises, entered, and forcibly put him out, and gave possession of the house to Abraham Kirkpatrick. Whilst the sheriff was breaking the house, Abraham Kirkpatrick and others, who came with the sheriff, went into the mill, the door of which was open, took possession, and held it with force, and still does hold, against the said Alexander, the house, and mill, and premises, then sold and delivered to him. If the court is of opinion, &c. then, &c. This case not to bar any exceptions to the form and regularity or effect of the proceedings previous to the settlement of this case.
    
      
      2 T. Rep. 90. c. 11 §. 5. 2 Hawk. 409.
    3 St. L. 94.
    1 St. L. 171, 180, 179.
    
      4 Burr. 2458. Rex v. Pusey, 2 Str. 717, and by analogy, see Rex v. Hales 2 Str. 816 and Rex v. Elsord 2 Str. 877.
    
      Rex v. Farewell, 2 Str. 1209, 6 T. Rep. 197.
    
    
      1 St. L. 67.
    2 Comm. 287, 290, 140. 3 Comm. 417. Stat. 11 & 13 Edw. 1. 27, Edw. 1.
    
      3 Comm. 417. 2 Bac. 351, 367 2 Sbower 85.
    
    3 T. Rep. 298.
    “H. H. BRACKENRIDGE, for pros.
    “JAMES ROSS, for des.”
    This case was argued by Brackenridge and Young, for the prosecutor, and by Ross, for the defendants.
    
      Brackenridge. The question is, whether, on an execution, and sale of land, under the act of assembly, the sheriff can give possession to the purchaser.
    Estates could not be aliened, at discretion by the owner, because his heirs and the public had an interest; and therefore lands were not made subject to debts, but after long time, and under great restrictions. Estates less than freehold were less favoured, and less in proportion as they approached the nature of chattels. Estates for years, or chattels real, may be taken in execution. To encumber land, certain solemnities were prescribed.
    On the sale of a term on a fieri facias, possession cannot be given; nor, to execute a fieri facias, can doors be broken; therefore no possession can be given. If the sheriff sell a lease, he cannot turn the tenant out of possession, but the vendee must bring an ejectment. At the suit of the king, or on a habere facias possessionem, the sheriff may break open doors. A person having a right of entry may enter peaceably, and, being in possession, may retain it, and plead his right. Buller, justice, inclines to think, the sheriff may turn out the person against whom the judgment is. But he speaks cautiously, which implies, there never had been an instance of it, and he rather seems to express what the law ought to be, than what it is. This is a mere speculative opinion, and in the case of a lease, Kenyon, chief justice, says, under an elegit, the sheriff could not deliver the land. The statute giving the elegit, says the sheriff shall deliver. The as of assembly, for taking lands in execution, directs, that where it extends, the sheriff shall deliver as upon writs of elegit. The act surely does not mean more, where, as on a fieri facias, all property is devested. There is good reason, that possession should not be given under such a writ, without farther enquiry. The sheriff levies an indefinite trail of land, without metes, &c. It is proper, that there should be an ejectment, to examine all the circumstances, and ascertain the specific quantity sold, and then a writ will issue, ordering the sheriff to give possession, as the former execution ordered him to fell.
    1 St. L. 68.
    
      Cowp. 1.
    2 Bac. 358
    But, be the reason of the law what it may, the law has been, that no possession can be given on a fieri facias. No instance has ever been of such possession given. Hence a strong presumption, that none can be given.
    
      Ross, for the defendants.
    It is true, by the common law, grounded on feudal principles, a judgment could not affect lands. They were a benefice for military service, the common tie between lord and tenant; and no alienation could be permitted, left an enemy should be made tenant. Even a son must be admitted by the lord, before he could enjoy the possession of his father. As military tenures were slackened, and commerce increased, the necessity of subjecting lands to debts became evident.
    The privilege of a house has been unreasonably extended, and is to be taken strictly. Does the same privilege extend to houses and lands, when they themselves become subjects of execution? Chattels only were liable to debts; because the debt was but a chattel.—Land was not liable, because it was the means of procuring military service, and defence of the kingdom. Afterwards commerce subjected lands to debts. The difference is as great between our situation and system of property, and that of England, at the time of the decisions cited against me, as between the situation of England then, and its situation before land could be sold at all. When the law gives the end, it must give all the means necessary to accomplish it. When land is subjected to execution, it must be seized by the sheriff, in the same manner as chattels may be seized; for otherwise the power of seizing would be nugatory. Our act of assembly made lands liable to execution. This makes them chattels for the payment of debts; and they have always been so considered.
    
      1 St. L. 12.
    5 Co. 93. 4 Bac. 454.
    On elegit, the sheriff is to deliver to the creditor, but half of the land. The sheriff cannot turn the debtor out of his own share: it is an undivided moiety. The sheriff holds an inquisition; afterwards, a liberate issues. Our execution enables the sheriff to seize land. And, from this time, he continues constructively in possession. His entry and possession are lawful, and even by the command of the law.
    The description of the land indorsed on the fieri fiacas, and inserted in the advertisement of sale, and in the deed, is more specific, than the description in ejectment. And the tenant may, at any time during the proceeding to sale, or before the execution and acknowledgment of the deed to the purchaser, come in and make his objections.
    As in the case of a recovery or fine, all the parts make but one whole title, and have a mutual relation: so the fieri facias, the seisure, and the venditioni exponas, the sale, and the deed, make but one: and the sheriff is supposed to be always in possession. The act of assembly enables the sheriff to give a deed vesting in the purchaser all the debtor’s title, at the time of the judgment I contend, the sheriff, under the fieri facias, may turn out any tenant of the debtor, whose title accrues subsequent to the judgment.
    It is not material here, whether the sheriff can break open the door, to take chattels out of the house. For here he may take the house itself. This is a case different from the other of which the English books speak.—Why enable a sheriff to take a horse by force, and not a house?
    Though the sheriff be not strictly justifiable in breaking doors, to make execution, yet, if he do it, the execution is good; and the party is turned round to his remedy against the sheriff.
    
      
      2 Show. 85. 3 T. Rep. 298.
    
      1 St. L. 12.
    
      1 Str. 45, 358. 1 St. L. 68.
    
      Doug. 456.
    
    3 Comm. 173-4.
    The case in Shower is quoted in Taylor v. Cole; and yet justice Buller, is of opinion, that the sheriff may give possession.
    Young, for the prosecutor.
    In construing statutes, we must consider, 1, what the common law was before;—2, what was the mischief intended to be remedied; 3, what the remedy is; and 4, what is the reason of that remedy.
    Our act of assembly makes lands liable to sale, and gives a clear estate in them to the purchaser; but no authority to give possession; no liberate, which in England is necessary to give goods to the creditor. Many estates have been sold, without the knowledge of the debtor. The acts of assembly give the sheriff no possession; only authority to sell, with a power to enter on the land, to ascertain it. Having sold, the sheriff is functus officio. Statutes are to be construed according to the reasons of the common law. Judges are not legislators. Land is to be delivered as on writs of elegit in England. No property can be delivered without a liberate. The acts give no authority to the sheriff to give possession, therefore he cannot do it, however right it might be.—Courts cannot exceed their authority; much less can ministerial officers. No fees are mentioned for this service, in the table of fees. The laws, rendering lands subject to execution for debts, make not lands chattels, but assets. In elegit, it is not an undivided moiety, that is delivered; but a moiety by metes and bounds. I have known ejectments brought on a liberari facias.
    
    The whole proceeding, the levy, the sale, and the deed, is but a conveyance, and operates as nothing more. It transfers the right, as if the owner himself had made the conveyance. The law gives the sheriff authority to seise, levy, and sell. He has no possession, and therefore can give none; for he can give no more than he had. He had no right to take possession; for, if he had, he might, at the seisure, have turned A. Fowler out of doors, and occupied and enjoyed the premises: for that only makes possession. Entry makes seisin, and enables to convey; but makes not possession. The sheriff, therefore, conveys the right, but does not surrender the possession. That, if detained, must be obtained, with damages for the detention, by a direct suit, when possession will be the object.
    
      
       As this case was greatly litigated, before it came into court, it may not be amiss to give a narrative of its progress.
      The defendants applied to one of the judges of the court of Common Pleas of Allegheny county, for his allowance of a certiorari, to remove the proceedings into the county court, and obtained it. The counsel for the prosecution objected to the certiorari as irregular, and applied to the judge to supersede it. Some doubts subsisting, the judge sent to me the following case, for my opinion, 30th January, 1794.-" Inquisition of a forcible entry and detainer found before justices of the peace. Certiorari, at the prayer of the defendant, allowed by a single judge in vacation, as of course, without special cause shewn.
      "Quere 1. Has a Judge, in vacation, authority to allow a certiorari, to justices of the peace, in the above case? If so, is it issuable of course, or must special cause be shewn.
      " H. H. BRACKENRIDGE, for prof.
      " STEEL SEMPLE, for def?
      This case was accompanied with the following notes by Mr. Brackenridge.
      "A certiorari is a writ out of the King's Bench, which appears to have been grantable only on motion, in open court. Every case respects moving for a certiorari or procedendo to supersede it. No idea of a certiorari having issued from a judge in vacation. This would seem not to have been known to the law, any more than a mandamus, or attachment, or other superintending and relieving writ. The power of a judge in vacation, to issue this writ, appears first in the act of 5th and 6th William and Mary, since the character of Penn, and, therefore, not a statute of our law. Queen v. White, is a case since that statute. Our statute of 13th April, 1791, empowering the Supreme court, or a judge of that court, to allow writs of certiorari, argues the authority to have been otherwise at common law. King v. Eaton, is decisive, that a certiorari ought not to have been granted in vacation, but in open court, and on a ground shewn. But, by our statute, a judge of the Supreme court in vacation, on special ground shewn, can issue a certiorari to the sessions of the peace, &c. and by our constitution, the judges of the courts of Common Pleas, have the like powers, with the judges of the Supreme court, to issue writs of certiorari to the justices of the peace. The court of Quarter Sessions is now one thing, and the justices of the peace another. Therefore the power of the Supreme court, with respect to the justices, remains as it was at common law. Of course, the power of the court of Common Pleas, with respect to them, remains the same: and a certiori to the justices, in their summary jurisdiction, is grantable only by our Supreme court, or court of Common Pleas, on motion, in open court, and not by a judge, in vacation. But, if allowable by a judge in vacation, at all, it must be done on cause shewn. I speak of the case of a certiorari prayed for by the defendant, or, on a liberal construction of the principle, by a private prosecutor using the name of the Commonwealth.
      “From the whole of the authorities, and the scope of the reasoning in the books, in cases of certiorari, it is evident, that a writ of this nature is not grantable of course.
      “In the summary jurisdiction of the justices, it would totally defeat the object of the law, as to summary redress, if the inquisition were removeable of course. In all criminal cases, it clearly cannot; and I should conceive, that, in all summary cases of a civil nature, the certiorari will be grantable, only to give a revilion of the proceedings, and to set aside for want of jurisdiction, or for irregularity.
      “It had been an early practice in this country, and, I believe, in the middle counties of Pennsylvania, to consider the certiorari in a criminal, as well as in a civil case, as issued of course. But in the year 1785 or 1786, I think, at Chambersburgh, a decision was formally given, by the judges of the Supreme court, that the certiorari was not a writ of course, but obtainable, at the prayer of the defendant, only on motion. The reason is, that otherwise it would be in most cases, used for the purpose of delay.”
      Such were the notes of Mr. Brackenridge. I would observe, that the expressions of justice Buller, in one of the cases cited, may render it questionable, whether a single judge of the court of King’s Bench in England, had authority to issue writs of certiorari, before the act 5 and 6, W, and M, which gave this authority.
      The act for establishing courts of judicature in this province, gave the judges of the Supreme court all the authority of judges of the King’s Bench, Common Pleas, and Exchequer, in England; it therefore gave them all the authority, which the stat. 5. 6. W. and M. had before given to the judges of the King’s Bench; and besides, it expressly gave authority, to issue writs, of certiorari, &c.
      The judges of the Supreme court, then, probably issued writs of certiorari to justices of the peace, acting specially, in the same manner, as to inferior courts; and the seventh section of the act to establish the judicial courts of this Commonwealth, is but a recognition of what their practice was before that act.
      Until the present constitution, the county courts were composed of justices of the peace, and had no power to send a certiorari to any justice acting individually. This power was in the judges of the Supreme court only.
      When the Convention of 1789 was new modelling, the county courts, and establishing them on a more respectable sooting, it was proposed to give them jurisdiction in capital cases. But that a prisoner, to be tried for his life, might have the benefit of the most enlightened tribunal in the state, it was proposed, “that the parties accused, as well as the Commonwealth, may remove the indictment and proceedings into the Supreme court at any time before trial.” An amendment of this proposition was introduced, substituting, instead of the words “at any time before trial,” the following provision; “but no writ of removal, presented by the party accused, shall be allowed by the court, where the indictment shall have been found without the consent of the attorney general, or special cause shewn, unless the same shall have been specially awarded by the Supreme court, or one of the justices thereof.” This amendment was almost unanimously rejected by the convention; because it altogether superseded the provision of removal into the Supreme court, by the party accused, and left the jurisdiction in the county courts, the same, as if no such provision had been made; for, if nothing had been said of removal, the law and practice, as it flood before, would have secured a removal on the terms proposed by this amendment; and because it was the intention of the convention, while they gave to the county courts jurisdiction in capital cases, to annex, to this jurisdiction, a condition of enlarging the power of removal, by defendants, into the Supreme court. The matter stood thus in the convention; it was thought proper, to give the jurisdiction, but not without extending, as far as possible, the power of removal, by the persons accused; when it was proposed, that the provision for removal should be, “that the parties accused, as well as the Commonwealth, may, under such regulations, as shall be prescribed by law, remove the indictment and proceedings into the Supreme court.” This proposition was adopted. But when, in conformity to this provision of the constitution, the legislature proceeded to prescribe regulations for the removal, by parties accused, of indictments and proceedings into the Supreme court; they prescribed this regulation, that “the certiorari shall be specially allowed by the Supreme court, or one of the justices thereof, upon sufficient cause to it or him shewn, or shall have been sued out with the consent of the attorney general.” This regulation, like the amendment first proposed, and almost unanimously rejected in the convention, added no new privilege to the parties accused, established the regulation, which the convention had rejected, entirely defeated the provision for the removal, and left the jurisdiction in the county courts, as if no provision for removal had been made, and it rested only on the law and practice in the courts of England, and in the Supreme court, which had the same authority and rules.
      The constitution gives to the judges of the courts of Common Pleas, within their respective counties, like powers with the judges of the Supreme court, to issue writs of certiorari to the justices of the peace, and to cause their proceedings to be brought before them, and the like right and justice to be done. Therefore judges of the county courts of Common Pleas here may, within their counties, issue writs of certiorari, as judges of the King's Bench in England could do.
      Now in England, the king has a right to demand a certiorari, and it cannot be refused him. A private prosecutor, borrowing, as he must, the name of the king, for a procecution, in which the king takes no interest, has a certiorari 
        of course, unless cause be shewn against it. But a defendant cannot have a certiorari, unless he first shew cause for it.
      Any certiorari, issuing for a defendant, without special cause shewn, is irregular, and will be set aside.
      My opinion on the above case was transmitted to the judge as follows.
      The authority of the judges of the courts of Common Pleas, to issue writs of certiorari to justices of the peace, is derived from the 8th section of the 5th article of the constitution, which gives them the like powers with the judges of the Supreme court. The judges of the Supreme court had the like powers with the judges of the court of King’s Bench; which court had a general superintendance over all inferior jurisdictions. Therefore, if we can discover what were the regulations, under which writs of certiorari were issued by the judges of the King’s Bench, we shall, of course, know the regulations for issuing them by the judges of the Supreme court, and the judges of the courts of Common Pleas; for they will be the same.
      Comparing the expressions of justice Buller, with the provision of the act of Parliament: 5, 6, W. and M. it does appear probable, that, before that act, writs of certiorari, for the defendant, were not granted but by the court in term time.
      Yet there is an inconvenience in this: and the clause in the 7th section of the judiciary law, which relates to writs of certiorari being allowed by one judge of the Supreme court, is not so much the introduction of new law, as a recognition of former law or established practice; and seems to be the same as that given by the act of parliament to the judges of the court of King’s Bench, and by the act of assembly vested, with the other powers of the judges of the court of King’s Bench, in the judges of the Supreme court; and the 11th section of this act of assembly expressly gives any one judge of the Supreme court power to issue writs of certiorari. So that the 7th section of the act of 1791, gave no new powers to the judges of the Supreme court; and their powers being the same with those of the judges of the court of King’s Bench in England, it is probable, that their practice was also the same. And it is probable, that, respecting writs of certiorari directed to justices acting specially, they adopted the same rules, as respecting those writs directed to justices as a court of Quarter Sessions. At least I know not the contrary.
      But it seems to he settled, that a certiorari on the part of the defendant, and without the direction or consent of the attorney-general, is never granted, but on cause shewn, and established by affidavit. And, if granted otherwise, it seems to be always set aside. And, in the case of a forcible entry and detainer, I think the cause shewn ought to be good, and clearly made out; as the certiorari prayed for is to delay the execution of a statute, intended as a summary and specific relief against an act of violence; and, if the case require it, all equitable terms ought to be laid on the defendant.
      The above opinion, transmitted by me to the judge, being against the certiorari, as issued, the counsel for the defendant, as Mr. Brackenridge stated to me, attempted to support it by procuring the consent of the attorney for the state. “This,” says Mr. Brackenridge, “I conceive could not help it.
      “1. Because the consent was not given before the issuing, and so the writ did not issue by consent, but without consent.
      “2. Because, it being the case of a private prosecutor, the attorney had no right to interfere.
      “The law is clear, that the attorney cannot demand a certiorari for the prosecutor; and why, without his consent, allow one to the defendant. It strikes me as unreasonable, that, as the prerogative or power of the attorney, to assist a private prosecutor, is taken away, it should exist, to injure him. However, the business was set right, at last, by obtaining a new writ, on affidavit filed, and conditions imposed.”
      But it seems to have been determined that a prosecutor is not bound to make affidavit or enter into recognisance.
      
    
   At June term, 1794, the opinion of the court was delivered.

President.

An inquisition of forcible entry and detainer, taken before two justices of the peace, having been removed, by certiorari, into this court, at the last term, the counsel for the parties presented the following case for our opinion.

“Agreed, that a verdict,” &c. ante p. 195.

The question in fact is, whether a sheriff, on a sale of lands taken in execution on a judgment, under the act of assembly is authorised to turn out the defendant possessor by force, and put the purchaser in possession.

There are some circumstances in the present case, different from the mere abstract question. But, in the argument, no stress was laid on them, and, perhaps, it may not be necessary to rely on them in making up our opinion. The abstract question only was considered then: perhaps the abstract question only need be considered now.

The argument for the prosecutor relied strongly on the unalienable quality of lands at common law, and the great hesitation, with which statutes submitted them to debts; and stating, that all statutes, in derogation of the principles of the common law, are liable to a strict construction, concluded, that our acts of assembly, which gave authority to sheriffs to sell lands, enabled them only to convey the right, not to change the possession; and that, to suppose the contrary, would authorise the sheriff, immediately on receiving the fieri facias, to turn the debtor out of possession, and to occupy the land himself, and receive the profits, till the time of the sale. But, as the act of assembly does not authorise the sheriff to do this, before the sale, he cannot do it after, for then his authority ceases; and the purchaser, like every other owner out of possession, must acquire it in a peaceable manner, or compel it by a direct suit, when that and damages will be obtained by an execution for that purpose. It is settled, that a sheriff cannot break open an outer door, to execute a fieri facias: how then can he give possession of a house? Though a term, being a chattel, may be sold on a fieri facias; or a moiety of land delivered on an elegit, yet, in neither case, can the sheriff give possession. The purchaser and the creditor must obtain possession, by ejectment. There is great reason, why a defendant should not be concluded by the proceedings in an execution, of which he may not have had notice, nor be turned out of doors without an opportunity of defence. Even if this were a regulation proper to be established, courts cannot take on them the authority of legislation; and they have no precedent or authority, to warrant them in giving sanction to this proceeding. There is no instance of this having ever happened either in England or Pennsylvania. The opinion of justice Buller, in the case of Taylor v. Cole, is on a point not judicially before him, is in the case of a lease not of a fee simple, is expressed cautiously, as on a new subject, and indicates rather what the law ought to be, than what it is. And, in the same case, lord Kenyon, chief justice, says, that on an elegit, the sheriff could not deliver the land.

3 T. Rep. 298.

ib. 295.

2 Show. 85.

3 T.Rep. 298.

Against these arguments for the prosecutor, the counsel for the defendants contended, that the unalienable quality of lands, at common law, proceeded from the peculiar nature of feudal tenures, being considered as a benefice for military service. But these principles have gradually given way to the progress of commerce: and our acts of assembly, subjecting lands to execution and sale for debt, completely reduces them to the state of chattels; and, if they may be seized as chattels, it follows, that they may be seized by force. The whole proceeding, the fieri facias, the seizure, the inquisition, the venditioni exponas, the sale, and the deed, are, as in the case of a fine or recovery, to be considered as one transaction; and the sheriff to be considered as in possession from the seizure. The proceedings give sufficient notice, and opportunity of defence, to all parties concerned. It is not material, whether, in England, the sheriff can break open the door of a house, to seize chattels; for, here, he may seize the house itself. And, there, the irregularity of breaking the door does not avoid the execution, it only subjects the sheriff to an action of trespass. The case in Shower, which lays it down, that, on the sale of a term, the sheriff cannot turn out the tenant, but the vendee must bring an ejectment, was cited in the case of Taylor v. Cole, and yet there justice Buller gives it as his opinion, that sheriff might turn out the tenant.

2 Show. 85.

1 St. L. 12, 67.

3 T. Rep. 292. H. Bla. 555.

Rex v. Deane, et al. 2 Show. 85.

Such seems to me the material substance of the arguments in this case. They were ample and well directed. No decision has been discovered, to justify the power exercised by the sheriff, on this occasion. What then shall we say? Has an attempt been made, in this case, which was never made before? Or has it often been made, and found to palpably justifiable as never to have been called in question? This cannot be, for there is a decision against it. I am inclined to believe, therefore, that the attempt has been seldom made; and is now defended, not by any precedent, but on the authority of justice Butter; on the terms or intent of our acts of assembly, for taking lands in execution for payment of debts; and on the principles of general convenience.

1. If accuracy of judgment, and knowledge of the subject, can give weight to an opinion, there are few, if any, whose opinions are entitled to more respect, than those of justice Buller. The case, in which his opinion was given, differs essentially from the case before us.—I speak of the case of Taylor v. Cole, as it appears in Term Reports, and in H. Blackstone’s Reports. That was an action of trespass against a sheriff. In that case, the entry of the sheriff was lawful and peaceable, and there was no expulsion by the sheriff. His entry was lawful, by virtue of a fieri facias, to be executed on the house; and the jury acquitted him of both the force and the expulsion. This is an entry and expulsion made with force. That case was a civil action. This case is a criminal proceeding. Though the case of Taylor and Cole, arose on a sheriff's sale; yet there is nothing in the manner in which the court examine it, to justify an idea, that a forcible expulsion, by virtue of a sheriff's sale, is not within the statutes of forcible entry and detainer; but rather that it is within those statutes. The chief justice, without distinguishing in favour of sheriff’s sales, states generally, that the case then before the court, was an action of trespass, in which a person having a right and having peaceably exerted it, may plead, that the land on which he entered was his own; but if he assert that right by force, it becomes the subject of a criminal prosecution, which was the case in Shower, a proceeding under the statute for a forcible entry. If this case in Shower, which lays it down, that the sheriff, having sold a term fieri facias, cannot, and must not, put the person out of possession, and the vendee in; but the vendee must bring his ejectment, had not been considered, by the chief justice, as applicable to a tenant in possession defendant, and as good law; why should he have given himself the trouble of distinguishing that case from the case before him, in these points, that the entry in the one case was peaceable, in the other forcible, and that the one was a civil action, the other a criminal prosecution. Buller, after expressing the inclination of his thought, on a mere speculative point, not within the case before him, declares, that he gives no opinion.-Kenyon, at the same time, seems to recognize the case in Shower, and that case is contrary to the inclination of Buller’s thoughts. The case in Shower seems to be recognized by the general current of English law authorities; and, supposing a term and a fee, in this respect, similar, is the case before us. Whether, therefore, are we to take for law the solitary, extra-judicial, unpremeditated, and unrelied on, opinion of a single, though highly respectable, judge; or a decided case, countenanced by the general weight of authority, and introduced into all the subsequent systems, as an established point of law? No doubt, the defendants, coming with the sheriff at his request, are exactly in his situation, and, if he be justifiable, they are. If a sheriff has authority to give possession, he must have authority to do it by force. The case in Shower says, he has no such authority.

If the suggestion of justice Buller can be reconciled with the case in Shower, it will be a more respectful attempt to reconcile them, than to set them in opposition. Both the case in Shower, and the case before us, are of a sheriff's giving possession after a sale. Justice Buller says, that the sheriff, having sold is functus officio: can this mean any thing, but that his authority over the premises is expired ? I should pay but a poor compliment to the judgment of justice Buller, to consider him as saying, that a sheriff has authority to act, after he has said, that his authority is expired. He does not say, that a sheriff functus officio can turn out a tenant by force, nor that a purchaser at sheriff’s sale can turn out a tenant by force (I suppose always the tenant to be the defendant in the judgment); and unless he says one or other of these, he comes not up to the case before us. He certainly would appear more consistent with himself, if we consider the authority he attributes to the sheriff, of turning out the tenant, as exerted, at the time of the seisure under the fieri facias, than as exerted after the sale. Let us see whether there be not something in the method of proceeding in England to the sale of a term, that will render this construction of justice Buller’s opinion more probable, than it would be, if it were to be applied to the method of proceeding to the sale of a fee simple estate under our act of assembly. In England, a term is fold, because it is a chattel. Immediately after receiving the fieri facias, the sheriff may seize the term, and, without delay, proceed to fell it, as he would proceed to fell goods. The distance of time, between the seizure and sale, may be so inconsiderable, that it is almost the same thing to the tenant, whether he is turned out at the seisure, or at the sale. In Pennsylvania, the sheriff, having received a fieri facias, and seized lands, must summon an inquest, and return the whole proceedings to the next court; and cannot proceed to fell, till, after this return, he has received a venditioni exponas; and, instead of several days, several months, must intervene between the seisure and the sale. It might be probable, therefore, that justice Buller would say, turn out the tenant, at the seisure; when, if between that and the sale, such time intervened, as in Pennsylvania intervenes, he would not have said so: when perhaps the seisure might be just before harvest, and the crop to be then severed might go far to pay the debt.

In England, nothing but chattels can be seised on a fieri facias. It has been held, that a bargain of sale of chattels is incomplete, without delivery. Any assignment of chattels, unless possession accompany it, is, as against third persons interested, held fraudulent and void; because possession remaining in the assignor, gives him a false credit, and enables him to impose upon others.— This is not the case with respect to land; for possession of it is not considered as evidence of right or title in it: this depends on the deeds, by which it is transferred from one to another. But as leases of land are considered as chattels, they have, in this respect, been subjected to the regulations of other chattels; and a conveyance of a lease for years, unattended with possession; has been held fraudulent. Considering a seisure in execution, as but a form of assignment, the same principles, for the prevention of fraud, have been applied to chattels taken in execution, and left in the possession of the owner: for these have been considered as subject to a second execution, at the suit of another person. It appears, therefore, that it must be usual in England, for sheriffs to take possession of the chattels, which they seise in execution, or to leave some person in possession of them, in their name.

Bulstr. 213. 2 T. Rep. 591—5.

1 Wils. 44. 1 L.Ray 251.

1 Wils. 44. Reed v. Harison, 2 Bla. 1218.

1 St. L. 12.

To me these circumstances appear to add considerable weight to the construction, which I have suggested, of the inclination of justice Buller’s thoughts on the power of a sheriff, to turn out the tenant of a lease. But neither these circumstances, nor this construction will justify the defendants in the present case. If the meaning of justice Buller was, that the sheriff, who could turn out a tenant, must be one not functus officio, the sheriff must turn out the tenant at the time of the seisure, or before the sale. If the turning out of the tenant be necessary, to prevent his possession from being evidence of fraud, in the case of a lease; that is not necessary in the case of a fee-simple. And, although this manner of turning out a tenant of a lease, which could be sold with all the summary diligence of a chattel, might be little or no inconvenience; yet this manner of turning out a tenant in fee-simple, the sale of whose interest must proceed with all the flow solemnity of our act of assembly, might be a great inconvenience.

2. If, therefore, the weight of justice Buller’s opinion will not justify the present defendants, they must resort to the second point; the terms and intent of our acts of assembly, for seizing in execution, and selling real estates.

The first act provides, to the end that no creditors be defrauded of the just debts, due to them by persons who have sufficient real estates, if not personal, to satisfy the same; that all lands and houses shall be liable to sale on judgment and execution, under certain regulations; and the sheriff shall fell and convey the same, under his hand and seal. After which, such lands and houses shall be and remain a free and clear estate to the purchaser, his heirs and assigns, as fully as they were to the debtor. The second act, with the same end in view, provides, that lands shall be liable to be seized and sold, upon judgment and execution obtained. The sheriff is directed to give the buyer a deed duly acknowledged in court. If the profits of the lands will, in seven years, pay the debt, the lands shall be delivered to the creditor, until the debt be levied by a reasonable extent, in the same manner, as lands are delivered on writs of elegit in England. If the profits be not sufficient, in seven years, to pay the debt, a venditioni exponas issues, empowering the sheriff to sell. And all other lands are to be seized and taken by a writ of levari facias, and fold, either with or without a venditioni exponas: or, if no buyer appear, are to be delivered, on a liberari facias, at the valuation of twelve men, to the creditor, as his free tenement.— The persons, to whom the lands are thus fold or delivered, their heirs and assigns, shall hold them, as fully, and for such estate, as the debtor did or might do, before the taking thereof in execution.

Taylor v. Abingdon, Doug. 456. 4 Mod.48. 1 Crompt. Pract. 363.

In this, I can fee nothing provided for, but the sale of lands for the payment of debts. And, as it is compulsory, the sheriff is made the organ of conveyance, instead of the owner. His whole proceeding is a legal conveyance, and, like any other legal conveyance, transfers, to the purchaser, all the estate of him, for whose debt it was sold. But there is nothing in this act, which says, that the purchaser from the sheriff is to obtain possession in any other way, than a purchaser from the owner, peaceably or by consent.

It may be said, that the direction to the sheriff to seize, and, in some cases, to deliver, implies an authority to turn out the possession, and put the purchaser in possession. But let it be remembered, that this seizure, if it mean a turning out of the owner, is when the execution is laid on the land, and before the sale; and that, even when the sheriff has seized, he is to deliver to the creditor, in the same manner as lands are delivered on writs of elegit in England; which seems to be little more, than a sheriff’s deed fub modo, or an authority to enter; and, on this delivery, the creditor must bring an ejectment.

Let us bear in mind, that our act of assembly was about to make a very material change in the principles of common law, and to declare, that lands should be sold for the payment of debts. The assembly knew, that, by the principles then governing real estates, lands could not be sold; and they knew that leases could be sold; yet they did not declare, that lands should be sold in the same manner as leases. The assembly knew, that on a fieri facias against a tenant of a lease, a sheriff could not turn this tenant out of possession, and put the vendee in; or, at least, they did not know, that he could; for no instance of the kind had ever been known to have happened, or if it happened, it had been judicially condemned; and yet they did not declare, that he should have this power, nor prescribe the manner in which it should be exercised. Can we suppose, that they would not have done so, if they had intended to do it? It is said, that, by subjecting lands to be sold for debts, they made them chattels. This is a loose way of speaking. It is plain, that they did not make them saleable as chattels; for they have prescribed a particular manner of proceeding. And though this manner is prescribed at considerable length, and with sufficient minuteness, not a word is said of the sheriff’s giving possession. If, independent of giving possession, there was a new object of sufficient importance provided for by this legislative act; I cannot, from any thing, which they have said, infer a new authority of giving possession: nor do I think myself warranted to supply their silence. Without supposing a new power of giving possession, of which nothing is said, there was a new object, of sufficient importance, provided for by this legislative act, an assignment or conveyance, under certain qualifications, of the right of the whole lands of a debtor. As, before this act of assembly, a creditor had a right to the enjoyment of half the lands of a debtor, until, out of this enjoyment, he should be paid. So, in the manner pointed out by the act of assembly, he could acquire a right to the enjoyment of the whole of his debtor’s land forever. But to enter on this enjoyment, and unite possession to his right, no new method is pointed out. What then is a court of law to infer, but that he must pursue that method, for this enlarged remedy, which, before, he could pursue for an inferior one, and prosecuting this, like any other, right of land, bring an ejectment.

3. Of the principles of English law, I know nothing so favourable to the present defendants, as the inclination of justice Buller’s opinion, so much relied on. But if, oil the principles of English law, and on the construction of our acts of assembly, the defendants are not justiciable, I know not to what principles we shall resort, on the ground of general convenience. On the subject of the present discussion, all the relaxations of common law severity have been made by the legislature. The legislature of this state have applied their attention to this subject, and, greatly to their honour, extended it beyond the narrow limits, to which it had been confined. We find nothing in the solemn act of this extension, which can inform us, that they intended to go farther than a transference of a right. Shall we, on a subject on which they have expressed their mind, take upon us to declare, that they intended to go farther, than their expression bears?

That an honest man, who, for a full price, purchases, at public sale, a tract of land, should, afterwards, find himself involved in a law-suit, to obtain the benefit of his purchase, is indeed an evil, which requires redress. But the legislature, with this evil under their contemplation, did not redress it. Will it be presumed, that, because they did not, we must? As the evil was known to exist in Pennsylvania, unremedied, either by the legislature, or by courts of justice, it is to be presumed, that purchasers at sheriff’s sales reckoned upon it in their bargain, and diminished their price, in proportion to the trouble they expected to meet with, in obtaining possession. Where this is the case, the real loss generally falls, where it ought to fall, on the obstinate owner, who continues in possession, after his right has ceased. Whether this has been the case, in the present instance, or not, is no reason for us to assume an authority, which is not given to us, and authorize a sheriff to do that, which law has not authorized him to do. It is better that an individual suffer, than that a general line of duty be broken through. It is better, that the evil exist, for some little time (I hope it will be but a little time) longer, than that its correction should come from as improper source. Great inconvenience would ensue, if the tenant were turned out at the seizure, under the fieri facias: and, to turn him out after the sale, appears to me to want the solemnity of judicial authority. The owner of chattels may seize them at any time: but has law has restricted the owner of land to a peaceable seizure. Great inconvenience might follow from a loose unguarded authority of turning out by force, perhaps instantaneously. Some precautions must be adopted for the due exercise of this power. None have yet been laid down by courts; for the exercise of it was never, that I have heard of, within their contemplation. To sanction it, without previous precaution, appears dangerous. When the legislature shall take the subject into consideration, they can lay down rules for proceeding in it. Until then, we believe, the evil must be suffered to exist, or find its remedy in the prudence of the parties. This is not an action of trespass, where right would justify the entry, and the taking and detaining of the possession. It is an indictment for a forcible entry into lands, and expulsion of the tenant, when there was no direct legal warrant for making the expulsion. This is an offence punishable by indictment. There must therefore be judgment for the Commonwealth; and restitution must be awarded.  