Joseph Patterson, for the use of Dunning M'Nair against James Sample, sheriff, and Andrew Robertson, special bail of Edward Jackson, 4 Yeates 307

Bkackenridge, J. This court has not exercised the power of appropriating the money arising from sales made by sheriffs. Tilghman, C. J. Such power has certainly been frequently used, which was confirmed by Yeates and Smith, Justices, who *on being appealed to, said, it was matter of constant .-.¡, , practice in Bank. ' L 3 Tilghman, C. J. It does not appear to me that the facts are sufficiently stated, to enable us to form an opinion on them. This forms an insuperable objection against exercising the

summary powers of the court in a case of this nature. I think, however, the opinion of Mr. President Shippen, in Campbell v. Richardson, cannot now be shaken, as to the period when a recognizance binds the lands of the bail. We have never adopted the whole of the common law in this government. Husband and wife selling the lands of the feme without levying a fine, and the dower of a married woman being subjected to the payment of the debts of the deceased husband, form instances of this kind.

The difficulty here is, whether equity would, undei circumstances similar to the present, uphold this mortgage against the judgment-creditor, who is said to have been injured by the negligence of the mortgagee ? This is my great doubt. Brackenridge, J. According to the usage of Pennsylvania, recognizances do not bind from their caption; and such was always my opinion. Explained in 2 Rawle 66 where it was said that the only ground upon which Smith, J. seems to have placed the case was, the recording of the mortgage deed within six months.

Referred to in 35 Pa. 134 as illustrating the cautiousness of the Supreme Court in declaring when prior judgments, mortgages and other liens were discharged and when not. In the case of -the United States v. Nicholls, this court made an order, that this commonwealth should be preferred ; but the facts were there fully stated. I cannot however see, that the court can make any order where a sale of lands has been made under a later judgment. Such creditor cannot by his sale affect the earlier liens of prior judgment creditors, whose earlier demands must be first satisfied before such sale can be validated.

Smith, J. I think no sale under a later judgment can affect prior judgments, unless they are fully paid by the sale. Yeates, J. was silent, from his connection with James Burd, who was his brother in law. But his opinion did not go to the extent laid down by the two last mentioned judges. Curia advisare vult. On the next day Tilghman, C. J. delivered the opinion of himself and Brackenridge, J. In this case, the plaintiff having obtained judgment against the defendant, levied on his land, and had it sold by execution.

The money being in the hands of the sheriff, a motion was made to the Circuit Court of Allegheny county, that the balance due on a mortgage executed by the defendant to James Burd, dated '4th November 1795, which was not recorded till 13th March 1801, should be paid to him. # 1 ^'Neither the sheriff nor purchaser have made any ap-3 ' J plication to the court, nor does the plaintiff consent to the decision of the dispute between him and the mortgagee in this

summary way. It appears too, by the argument which has taken place, that' the parties are at variance with respect to several facts, which might materially influence the court in their decision. If there was no other mode for the mortgagee to obtain redress, we might be induced to proceed to a decision, having first directed the controverted facts to be ascertained by a jury. But as the mortgagee has a plain and simple remedy by proceeding in the usual way on the mortgage, we think it most proper to leave him to that remedy, without making any order for payment of the money, and without intimating any opinion as to the merits of the dispute.