1800. been discharged, as an insolvent debtor. 4 State Laws, 274; and contended, that by the force of the terms there used, the judgment continued a lien, upon the debtor's discharge, notwithstanding a ca. sa. had been previously issued. Indeed, a judgment is constituted a lien by the constitution and laws of Pennsylvania, in the nature of a mortgage; and it must ultimately be satisfied out of the real estate, without regard to the process, either against person, or goods, to which a plaintiff may first resort. 1 State Lars, 252. The law in England is different. There a ca. sa. was considered so complete a satisfaction, that if the debtor died in prison, the creditor had lost all remedy, till the statute of 21 Fac. 1. c. 24. was enacted to afford him relief. But there are sufficient reasons, for the difference. In England, real estate cannot be sold, for the payment of debts, as it may in Pennsylvania. In England, too, the insolvent acts are gratuitous, and occasional; temporary in duration, and restricted in objects; but in Pennsylvania, they are constitutionally ordained; permanent, and universal. Const. art. 9. s. 16.

W. Tilghman, for the assignees of Ruston, contended, that Coates had lost the lien of his judgment, by issuing a ca. sa. That a ca. sa. amounts to a legal satisfaction of the debt, is the settled law of England; and there is no reason to depart from it here. 5 Co. Rep. 86. Bloomfield's case. Hob. 56-62. Nor can the terms, or the principles, of the insolvent law affect the case. The sheriff's sale was made on the 12th of July 1798, and Ruston was not discharged, until the 21st of November following; before which, the greater part of the purchase money had been actually paid to the sheriff. The state of the fact and the law, when the property was sold, and the price received, must govern the decision, not matter arising ex post facto. And the act of assembly, when it provides, for the distribution of the lands of the debtor, at the time of his discharge, can never be fairly construed, retrospectively, to unravel, revise, and cancel sales, and payments, and distributions, all regular at the time that they occurred. It is true, that the 17th section of the act continues in force all judgments, by which the debtor was bound, at the time of his discharge; but if the ca. sa. against the person, extinguished the lien upon the estate (which is the very point to be decided) then Ruston was not bound by Coates's judgment, at the time of his discharge; and such is the necessary exposition of the law, when

..

"manufacturer, his tools, not exceeding in value the sum of fifty dollars; and "it shall and may be lawful for any of his creditors, or his or their executors or administrators, to take out a new execution against the lands, tenements, hereditaments, goods and chattels of such debtor, except as before excepted, for the satisfaction of their debts respectively, in the same manner and form as they might have donc, if the said debtor had never been taken in execution, any act, statute, law or custom, to the contrary notwithstanding.”

the

the 17th and 19th sections are considered together, as to the 1800. fund, the existing fund at the time of discharge, which is to be distributed among the creditors. The adverse doctrine, would give the execution creditor two remedies, contrary to the principles of the common law: it would open a door for collusion between the debtor, and his ca. sa. creditor: and it would involve the relative rights of creditors, in endless perplexity and uncertainty, whenever an insolvency of a debtor happened, or even the prospect of it was in view.

By the COURT: The case appears so clear to us, that we do not wish another moment for consideration. The law is settled in England, that a ca. sa. operates as a satisfaction of the debt; as an extinguishment of the lien of the judgment. We have no other rule prescribed to us in Pennsylvania; nor can we conceive that there would be any policy, or justice, in departing from it. Ruston was in actual custody, upon Coates's ca. sa. when the land was sold. He had no lien, no claim, to the proceeds of the sale at that time; and we can perceive nothing, in the fact, or the law, of the case, which has since revived his old right, or given him a new one, to the land itself, or to any part of the purchase money.

The rule must, therefore, be discharged.

OF

PENNSYLVANIA.

December Term 1800.

Hepburn's Lessee versus Levy. (1)

JECTMENT, for land in Lycoming county. In the charge to the jury, it was ruled,

By the COURT: In the case of a lost warrant, it may be removed to other land, provided the removal affects no previous right; and if it is actually surveyed upon vacant land, returned into the land office, and there accepted, it becomes an appropriation. If, however, any warrant issued, appropriating the land, before an actual survey upon the removed warrant, the right of such warrant must be preferred. The fact to be decided in the present case, therefore, is, whether any warrant, particularly describing the land in question, was delivered by the defendant to the deputy surveyor, before the survey was made for the plaintiff? A vague, undescriptive, warrant, will not be sufficient to affect the plaintiff's survey: and, although fraud is said to vitiate every transaction; yet, the fraud of the deputy surveyor cannot affect the rights of the defendant.

E'

The Lessee of Weitzell et al. versus Fry.

JECTMENT for 306 acres of land in Northumberland county. The case was this: On the 13th of September 1774, John Read, being seised in fee, mortgaged the premises, mentioned in the declaration, to "The trustees of the general loan "office of the province of Pennsylvania," incorporated under the act of the 26th of February 1773. 1 State Laws, 644. Dall.

(1) Tried in the Circuit Court, Lycoming county, on the 24th Oct. 1800, before SHIPPEN, C. J., and BRACKENRIDGE, J.

edit. After various successive modifications of this trust, (1) the 1800. powers and duties of the trustees were transferred to, and vested in, the treasurer of the state, by an act of the 1st of April 1790. 2 State Laws, 792. s. 9. (2) The sheriff of the county, in his evidence on the trial, stated, "that he had received a precept, dated in September 1792, for selling the lands, under Reed's mortgage, from the office of Mr. Febeiger, the state treasurer; that the precept, he believed, was signed by Mr. Febeiger, and attested by Mr. Ingersoll, the attorney-general; that he delivered the precept to Mr. Febeiger's clerk (who, it appeared, had left the country) indorsed, he believed, (though he was not positive) with a written return, as it was his practice to make such indorsements; that he thought he had put up printed advertisements of the time and place of sale; and that he made the sale on the premises." It was proved, however, that, on a strict search of the loan office papers, no precept, in the present case, could be found, except one, which had no date, and which was not signed by Mr. Febeiger. And an advertisement of the sale, to be made on the 11th of December 1792, was read from the Sunbury, and Northumber land, gazettes, dated the 6th of October preceding. At the sale, Thomas Reese became the purchaser, to whom the sheriff made a deed, on the 22d of February 1793, for the consideration of 1891. 7s. 6d. and, on the 20th of March 1793, Reese conveyed to the lessors of the plaintiff, for the consideration of 160/. But, it was alleged by the defendants, and evidence was given tending to show, that Reese had been collusively employed by Richeson, one of the lessors of the plaintiff (the others being totally igno rant of this part of the transaction) to make the purchase for him, while, at the time of the sale, he set up a title to the premises, producing a deed from the county commissioners, dated the 26th of November 1792, when the land had been sold for taxes; menacing any purchaser with a law suit; and, in fact, prevented several persons from bidding, who had attended for that purpose; and some of whom avowed, that they would give 3501. for only 200 acres of the land.

On these facts, the defendant contended, 1st. That the autho rity of the state treasurer, was a special authority, and ought to be strictly pursued: whereas there was no official precept, as required by the act, to justify the sheriff's sale; nor any proof of advertisements put up at public places. 2d. That the fraud com. mitted by Richeson at the time of sale, vitiated the whole proceedings; particularly, when connected with the inadequacy

(1) See the note (h) subjoined to the act above cited. 1 vol. 644.

(2) By an act of the 11th of April 1793, a grant was made to the Pennsylvania hospital, payable out of the money due to the loan office; and the managers of the hospital were constituted trustees, for the purpose of collection. 3 State Laws, 379. Dall. edit.

of.

1800. of the price. Corp. 26. Hal. Hist. Com. Law, 49. Cowp. 4541 2 Pow. Cont. 144. 163. 1 Br. Chan. 163.

The plaintiffs answered, that the weight of the evidence was in favour of the regular advertisement of the sale; that the blank precept, now produced, could not have been the precept, under which the sheriff acted, as he swears that his precept was signed by the treasurer, and attested by the attorney-general; that the loss of the precept being evident, its existence and regularity are legally proved by the sheriff; that it might, perhaps, be contended, that the production of a written precept was not indispensable in this case; 1 Ld. Raym. 166. 5 Mod. 387, 2 Salk. 467. that Richeson was bound to give notice of the commissioners' deed, whatever effect it produced on the sale; that this was the only ground to impeach the sale; and that fraud ought not to be presumed.

SHIPPEN, Chief Justice. There are two points of inquiry before the Court and jury: 1st. Whether the proceedings upon the sale have been regular? 2d. Was there such an act of fraud, unfairness, or contrivance, at the time of the sale, a's.ought to vitiate the whole transaction?

1st. It is alleged, on the first point, that there was no precept authorising the sale; and it is proved, that, on search, a regular. precept has not been found in the treasurer's office. We think, that a precept was necessary to support the sale; and that the paper, which has been produced, was not a regular precept. But, on the other hand, the sheriff swears, that he received a precept signed by the treasurer; and it is not probable, that he would have sold an estate under a blank form. As, therefore, the party has not the custody of the precept, and ought not to be made responsible for its loss; the jury will consider, whether there is not sufficient evidence, to presume the existence of a regular precept, at the time of the sale.

It has, also, been urged, that there is no proof, that advertisements of the sale were posted up at public places; but, if the sale was a fair one, we regard this, as a very feeble objection. The act of making such advertisements, is the duty of the sheriff; it is a matter merely directory; and, unless an actual injury has been sustained by an omission, it would be hard, indeed, that it should affect the title of a bona fide purchaser.

2d. The chief ground of defence, however, is the allegation of fraud at the sale; and if Richeson did then attempt to get the land unfairly, he ought not to be allowed to benefit by his iniqui ty. It is always a mark, prima facie, of unfairness, when a man, who forbids a sale, or slanders a title, Lecomes himself the purchaser of the land. It is true, that Richeson might be bound to give notice of the commissioners' deed; but did he confine himself to giving a fair notice of the claim, without any sinister dc