[Tyrell's Heirs v. Rountree and others.]

whether the said judgment of the court of pleas and quarter sessions of Williamson county was void or not, the sale under it was void as to that part of the land which was situated in the county of Maury at the time of the sale; and that the sale and conveyance of the sheriff of the county of Williamson did not transfer that portion of the land.

The charge of the court was, that neither the judgment nor the proceedings in Williamson county were void, for any thing appearing or not appearing on the face of said judgment and the record thereof.

The court also charged the jury, that, if a portion of the land in controversy was situated in the county of Maury at the time of the sale thereof by the sheriff of Williamson, under the judgment of Molloy's executors, yet that such sale was good, and vested the title in the purchasers, as the land was all situated in Williamson at the time of the levy, where public notice of the sale was given, until within a few days of the sale, and that the sale was good by relation to the levy.

The counsel for the plaintiffs excepted to the charges of the court thus given, and a bill of exceptions was sealed by the court. Judgment having been rendered for the defendants, the plaintiffs prosecuted this writ of error.

The case was argued by Mr. Coxe, for the plaintiffs in error; and by Mr. Bell, for the defendants.

*Mr. Coxe, for the plaintiffs, contended, that after the di466] vision of the county, by the act of the legislature of Ten

nessee, in which act there was no saving clause as to the matter before the court, all the right of the sheriff of Williamson county to sell that part of the land which fell within the county of Maury, terminated.

The sheriff does not take possession of the land against which the process of execution issues, and under a writ of venditioni exponas he sells no more than the right and interest of the defendant in the same. He cannot deliver possession of the property he sells to the purchaser.

This shows that the sheriff has but a naked power to sell the lien of the plaintiff, which he has acquired by his judgment; and that it is co-extensive, and no more, with the limits of the county in which he can exercise the authority of a sheriff. As soon as any part of the property of the defendant is by law separated from the county of which he is the sheriff, all his authority to dispose of the rights over it acquired by the plaintiff in the judgment, are at an end.

By the laws of Tennessee of 1794, a judgment is a lien on all the lands of the defendant in the state, and execution may issue from the court in which the judgment is obtained, to the sheriff of the particular county in which the land of the defendant may be situated. As therefore the lien of the plaintiff in the suit under which

[Tyrell's Heirs v. Rountree and others.]

the land in controversy in this case was sold was not affected by the division of the county, the plaintiff might have had process of execution to the sheriff of Maury county, and have thus sold the land of the defendant. Instead of this, he employed the original execution. Cited, Bacon's Abr. Execution.

Mr. Bell, for the defendants in error, argued, that by the attachment the sheriff of Williamson county became fully invested with such a possession and control over the land attached as authorized him when judgment should be obtained, and process of execution issued, to dispose of it. The attachment issued on the 13th of February, 1807, and before the act dividing the county was passed, every thing to complete and secure the rights of the plaintiff over the land attached, and to empower the sheriff to dispose of it, was done.

[*467

As the sheriff does not deliver possession of the land he sells under an execution, his powers under the process were not affected by the act dividing the county. After the sale, the rights of the purchaser could be enforced in an ejectment, and did not require any further act of the sheriff to complete them. The sheriff is not by the law of Tennessee required to go to the land he takes in execution; and he sells it at such place as he may think proper.

The rights of the plaintiff under the attachment, the judgment and the execution, were fully vested and secured before the act for the division of the county was passed; and those rights could not be affected by the same. He could not be interrupted or delayed in the use and enjoyment of those rights; nor could they be postponed. To decide that he must have resorted to new proceedings, would be to say that he could be deprived of the rights thus obtained, by a law passed after they had been acquired and completed. Such a law would impair rights protected by the constitution of the United States, and that of the state of Tennessee.

Mr. Chief Justice MARSHALL delivered the opinion of the court. In this case the plaintiffs in error contend that the circuit court misdirected the jury; in consequence of which, the verdict ought to be set aside, the judgment reversed, and a venire facias de novo

awarded.

They had brought an ejectment for a tract of land, the title to which was shown to have been in their ancestor; but which the defendants claimed under a conveyance thereof made by the sheriff of Williamson county, in West Tennessee, in pursuance of a sale made by him under a writ of venditioni exponas, issued on a judgment rendered in a suit commenced by attachment.

On the 12th day of February, 1807, the attachment was regularly issued, and was levied on the 13th of the same month on the land in controversy. The defendants in the attachment did not appear, or replevy the property, but made default; on which judgment was rendered on the 18th of October, 1807.

On

[*468

[Tyrell's Heirs v. Rountree and others.]

motion, the property attached was condemned, and a writ of venditioni exponas awarded, which issued on the 24th, and came to the hands of the officer on the 28th of October, 1807, who sold on the 2d of January, 1808.

The plaintiffs proved that the county of Williamson was divided on the 16th of November, 1807, and that part of the land for which the ejectment was brought lay in the new county called Maury. He therefore moved the court to instruct the jury that the sale was void as to that part of the land which was situated in the county of Maury, at the time of the sale; and that the conveyance of the sheriff did not transfer that portion of it.

The court instructed the jury that the sale was good by relation to the levy. To this instruction a bill of exceptions was taken, and the cause is brought up by writ of error.

An

The counsel for the plaintiffs in error has argued the cause as if the process under which the sale was made had been the usual execution awarded on a judgment rendered against a person brought into court by regular process. Without inquiring whether his objections to the charge would have been well founded, had that been the character of the case, it is sufficient to observe that, in the actual cause, the land itself was attached. Not having been released, it remained in the custody of the officer subject to the judgment of the court. interest was vested in him for the purposes of that judgment. The judgment did not create a general lien on it, but was a specific appropriation of the property itself to the satisfaction of that particular judgment. The process which issued did not direct the office to levy it on the property of the defendants, but to sell that specific property which was already in his possession by virtue of the attachment and was already condemned by the judgment of the competent tribunal. The subsequent division of the county could not divest this vested interest, or deprive the officer of the power to finish a process which was rightly begun.

There is no error in the charge, and the judgment is affirmed with

costs.

346

THE LESSEE OF EDWARD LIVINGSTON AND OTHERS V. JOHN 134
MOORE AND OTHERS.

The titles to lands under the acts of the legislature of the state of Pennsylvania, providing for the sale of the landed estate of John Nicholson, in satisfaction of the liens the state held on those lands, and the proceedings under the same, are valid.

These acts, and the proceedings under them, do not contravene the provisions of the constitution of the United States, in any manner whatsoever.

The words used in the constitution of Pennsylvania in declaring the extent of the powers of its legislature, are sufficiently comprehensive to embrace the powers exercised over the estate of John Nicholson.

IN error to the circuit court of the United States for the eastern district of Pennsylvania.

In the circuit court, the plaintiffs in error instituted an ejectment for a tract of land in the county of Franklin in the state of Pennsylvania. They showed title to the land as the heirs of John Nicholson, who was seised of the same at the time of his death, under a warrant, survey, and return of survey, and payment of the purchase money to the state.

The title of the defendants was regularly derived from a sale of the lands of John Nicholson, made under authority of the state of Pennsylvania, towards satisfying the lien claimed by the state for the debts due by John Nicholson, arising from his defalcation as the comptroller-general of the state.

The constitutionality and validity of that lien were denied by the plaintiffs.

On the 13th of April, 1782, John Nicholson was, by an act of the legislature of Pennsylvania, appointed comptroller-general of the state, and was entrusted with large powers for the collection of the debts due to the state, the settlement of public accounts, and the management of the funds of the state.

Mr. Nicholson acted as comptroller for twelve years, during which time he was impeached, tried and acquitted. He afterwards, on the 19th of April, 1794, resigned the office.

By accounts stated, on the 19th of November, 1796, large balances were found to be due by Mr. Nicholson to the state [*470 of Pennsylvania. On an account, No. 1, headed "Dr., John Nicholson, account in continental certificates with the state of Pennsylvania, Cr.," the balance was fifty-one thousand two hundred and nine dollars and twenty-two cents; and on another account, No. 2, headed "Dr., John Nicholson, account, three per cent. stock in account with the state of Pennsylvania, Cr.," the balance was stated to be sixty-three thousand seven hundred and thirty-one dollars and six cents.

The original accounts were given in evidence on the trial in the circuit court, and also counterparts of them signed by the respective

7p 469

34

7p 169

174 22 85f 430

[Lessee of Livingston v. Moore and others.]

officers, upon which were endorsements, one in the handwriting of Mr. Nicholson, the other in that of his counsel in a suit instituted against him for the recovery of the debts due to the state.

A suit was commenced in the supreme court of Pennsylvania, by the state against John Nicholson to September term, 1793, for the loss sustained by the state on certain certificates, which it was alleged he had improperly subscribed; and a verdict was obtained against him on the 18th of December, 1795, for four thousand two hundred and eight pounds eight shillings and ten pence. No execution was ever issued on this judgment.

To September term, 1795, another suit was instituted by the state of Pennsylvania against John Nicholson, being an action of trover for certain continental certificates and funded stock of the United States. Judgment was entered in this suit on the 20th of March, 1797, on the following agreement, signed by the attorney-general of the state, and by the counsel for the defendant.

"21st of March, 1797, by agreement filed, the judgment is for the sum of one hundred and ten thousand three hundred and ninety dollars and eighty-nine cents, rating the stock as follows: six per cent. at sixteen shillings and ninepence in the pound; three per cent. at ten shillings; militia certificates at fifty per cent.; and that, in the set-off, the stock be allowed at the same rate; the defendant to be allowed three months to point out any errors to the satisfaction of the comptroller and register-general, such errors to be de*471] ducted from the sum for which judgment shall be entered. Certificates and receipts to be credited also, with the charges of the funded debt. Errors against the commonwealth, if any, also to be corrected. The sum for which judgment is now entered, to be altered by the subsequent calculation of the comptroller-general alone. Supreme court, costs taxed at thirty-five dollars and thirty-five

cents.

Executions were issued on the judgment in the year 1798, and afterwards in 1803, to many counties in the state, and proceedings to condemn the lands of the defendant took place. Between the 8th of March, 1796, when the first settlement of the accounts of John Nicholson was made, and the 21st of March, 1797, when the state judgment was entered, many judgments were obtained by the private creditors of Mr. Nicholson, which remain unsatisfied on the records. On some of these judgments executions were issued and levies made on the real estate of the defendant, prior to the executions levied by the state on the same lands. Mr. Nicholson was arrested under executions by private creditors, and died in prison in December, 1800. His heirs were then minors, and they all left the state prior to 1804.

The legislature of Pennsylvania passed, at different periods, laws for the settlement of accounts, and the collection of debts due to the

state.

By an act passed on the 18th of February, 1785, it was provided, "that the settlement of any public account by the comp