dissenting. — This was an ejectment for a tract of land in Fayette county. To understand so much of the case as is referred to in the following opinion, I must state some of the facts out of which the dispute arose.
Of April Term 1834, four judgments were entered on bonds with warrant of attorney to confess judgment, all at the suit of Bazil Brownfield against Dr John Braddee, amounting together to upwards of §7000. On one of these judgments e. fieri facias issued to June Term 1834. On motion and affidavit, a rule was given at June Term, and enlarged till September Term, to show cause why these judgments should not be opened. This application was renewed at every, or almost every court, and in different forms, for two or three years. Two or more witnesses swore positively to the payment of the money and signing a receipt by Brownfield. The court, however, refused to open the judgments. Braddee offered to lodge the amount in court to abide the event of the trial if the court would open the judgments, and he brought it in; but it was in bank-notes, current in every bank west of the mountains, and offered, when the court would not open the judgment on this, to produce the specie in a few days. This delay was refused him. He was advised by the court, as his counsel stated here, to bring suit against Brownfield, under the Act, for not entering satisfaction on a judgment which was satisfied.
On removing the cause to the Supreme Court, it was decided that the Act applied to payments made after the judgment entered, and not to a case where the whole debt was paid after date of the bonds, and before judgment confessed on the warrant of attorney. Braddee then applied to the legislature, and, producing his receipt signed by Brownfield, in presence of two witnesses, and proved by their oaths, the Act of 1st April 1837 was passed. In the mean time, Brownfield had issued a venditioni exponas, and it was in the sheriff’s hands.
The Act, after setting forth that the truth of the facts set forth in the petition and application to the court are such as can only be tried by- a jury, enacts, “ Sec. 10. That the court aforesaid (the Common Pleas of Fayette county) shall order said judgments to be opened, and direct an issue to try the alleged fact of payment before a jury of said county, in the same manner that causes are at law triable. Provided nevertheless, that the said judgments shall remain liens as security to the said plaintiff for whatever sum should be found due to him, should he pecover anything thereon.
“ Sec. 11. All orders or precepts of the court aforesaid, shall be stayed until the question of payment aforesaid shall be determined by a jury as aforesaid, and all sales, should any be made on the said judgments, of the real or personal estate of the said defendant, shall be void until the facts alleged in the petition of the said defendant shall be tried by a jury as aforesaid: Provided, that all *282expenses of said sales shall be defrayed by the said defendant; and should the said jury, on the question aforesaid, find for the said defendant, then such sales to be void, and of no effect; but if the said jury should find otherwise, then the said sales to remain in full force and effect.
“ Sec. 12. The prothonotary of Fayette county is hereby authorized and directed to make a list of thirty-six reputable citizens of said county, or such other number as may be agreed upon by the parties, from which the parties by themselves or counsel, shall strike one name alternately, beginning with the plaintiff, until there shall be left twelve persons who shall try the issue aforesaid.
“ Sec. 13. Should the judges of the Court of Common Pleas of Fayette county decline or refuse to try the issue aforesaid, the District Judge of the city of Pittsburgh, in the county of Allegheny, be and he is hereby authorized and empowered to hold a special court at Uniontown, in the county aforesaid, at such time as the said judge may order and appoint: Provided, that the said court shall be holden on or before the first of January 1838.
After this, Braddee presented a petition setting out the law at large, accompanied by a duly authenticated copy, and praying the court to open the judgment and direct an issue as therein enjoined to do. The entry of record is on the petition of John F. Braddee, (prout the petition, &c). Baird, President, gave his reasons for declining to act, viz:
1. “Because the legislature have left it optional to the judges of this court, by giving jurisdiction to another judge; which, as I conceive, is a clear intimation that the participation of the members of this court, for some reason not explained, is neither expected nor desired.
2. “ Because having taken no part in the decisions of this court, which the legislature has undertaken virtually to review, it would be improper for me to interfere.” (I have tried in vain to understand the fact or reason of this.)
3. “ Because even if the case was certainly thrown upon this court by the unequivocal terms of the law produced, I would not obey a mandatory legislation, presenting to me a particular course of judicial action. The Act does not merely give a power or impose a duty, but directs how a power already inherent shall be exercised in a particular case. The opening of a judgment is a very important judicial action. It is an interference with a right which a party has acquired, to' obtain by a legal process a sum of money ascertained to be due, and is placing that right to the contingency of a new examination. This may be proper upon certain facts being established. It is the province of the court to hear the evidence, and decide upon its import and force. The consciences of the judges must be affected before they can, by their agency, set aside a fixed and ascertained claim. This Act of Assembly commands the court to make a particular decision *283upon evidence not submitted to it, but to the legislature; or, iñ other words, to act upon a conclusion formed in the minds of other persons, not from the result of its own judgment upon facts proved. This, I think, is unanswerable. No authority can warrant me, according to my sense of obligation, to do a judicial act, involving a decision upon facts, unless I am free to form my own opinion and decide as these facts may require. As well might I be commanded to charge a jury in certain and prescribed terms in any case, as to determine how I shall decide upon facts not submitted to me but to the Legislature. This is my separate and individual opinion.
“ Th. H. Baird.
June 10, 1837.”
“ June 10, 1837.
“ The President Judge having declined taking any part, or meddling with the within, the Associates do likewise decline.
“ Charles Porter,
“ Samuel Nixon.”
On the first day of the June court, the counsel of Braddee moved to set aside the sale of Braddee’s land, which had been made after the Act aforesaid, and after the Act had been shown to Brownfield and his counsel, and to the sheriff. This the court refused to do, for the reasons before stated by the court; then, in the words of Judge Greer, “on a certificate of this refusal, the President Judge of the district of Allegheny, assuming himself to be the person intended by the description of District Judge of the city of Pittsburgh, appointed a special court at this place, (Uniontown) on the second Monday of August 1837. Presuming, also, that the legislature meant something, notwithstanding their costiveness of diction and perplexed obscurity of expression, that special court, when constituted, assumed jurisdiction of these cases, and although there was no issue as yet directed, they assumed the power to direct one and try it, and after a partial (I suppose this is an error in the copy, for impartial,) investigation, and a full and fair hearing of the parties, the jury found that the judgments had not been paid.”
As the Common Pleas had refused to set aside the sale for the reasons before stated, viz., that the law was an infringement of their rights and dignity, and that the cause was out of their court, Braddee, by his counsel, applied to the special court to set aside the sale, because it was made in express contradiction to the plain and express direction that all orders and precepts of the court aforesaid should be stayed until the question.of payment shall be determined by a jury. That court, however, decided that they had only power to try the issue. It would not have been any” greater assumption of power than they had taken before, to have *284acted on this application. Braddee then went again to the Common Pleas, and stating that the special court had decided against his application because the cause was still in the Common Pleas, applied to them to hear his application to set aside the sale; but this was refused, and the deed acknowledged without any hearing of him or his objections.
There are parts of this case on which I shall give an opinion without knowing whether that opinion accords with the other judges or not; as I understand they do not propose to decide whether the Act of Assembly is or is not constitutional. The power of the legislature in this state — what they can or cannot legally do, is not settled. Constitutional objections have been raised to some laws which did not call for a serious answer; and laws have been acted on without objection, to which it is pretty clear no answer could have been given if objection had been made. In this case I do not propose to write an essay which will cover the whole ground. It is safest to confine an opinion to the cause trying.
When I was reading under the late Judge Duncan, we had no book on the laws of this state, but 1 Dallas's Reports. I was very anxious, among other things, to learn something of our practice. Thomas Smith, Esq., afterwards a Justice of the Supreme Court, was President Judge in Carlisle. I understood that while justices of the peace presided in the Common Pleas, there had been a difficulty as to opening judgments confessed on warrants of attorney. He established the practice that on an affidavit of the defendant stating a fact or facts, which if true amounted to a defence to the whole or part of the judgment, and concluding that there was a just defence to the whole or part, a rule to show cause why the judgment should not be opened must be granted; and if the facts were proved by a disinterested witness, the judgment must be opened; and no contradicting evidence was to be received, because the court could not decide on disputed facts— for this purpose a jury was absolutely necessary. After I was admitted to the bar, I practised under Judge Rush, Judge Riddle, and Judge Walker; and presided as judge nine years, and never knew of any other doctrine in that district. I had heard of conflicting affidavits in other parts of the state; but heard this again contradicted, and that the judge had only received affidavits to show that one brought as a competent witness, was in fact interested.
I consider the admission of contradictory affidavits in the Common Pleas in this case, as contrary to what had been the established practice throughout the state, but as contrary to the principles of our law. So the legislature thought when they say the truth of the facts in the petition can only be tried by a jury. In my view of the matter, it is not material whether the Act in question was only restoring the law, or made a new provision.
*285There are high authorities for saying, there Is in every government somewhere an absolute and despotic power. Calder v. Bull, (3 Dall. 386); Story on Const.; Livingston v. Moore, (7 Peters). The exceptions to this are only such as are expressly specified in the written constitution. In this state, all those matters mentioned in the 9th article of the constitution “ are excepted out of the general powers of government, and shall for ever remain inviolate.” Subject to this, and only to this, or some provision of the constitution of the United States, the power of the legislature in this state seems not to be limited; I mean their power to enact laws. “The legislative power of this commonwealth shall be vested in a General Assembly, which shall consist of the senate and house of representatives.” A limited veto power is given to the governor unless two-thirds of each house agree.
Theorists have said there ought to be a division of all powers of government into executive, legislative, and judicial;, and that these ought to be kept separate. To a certain extent this may be true; but it never has been perfectly attained, and I doubt its utility in practice if attainable. It has not yet occurred in this world that an organization of the judiciary of any country has been devised, which did not from various causes require enlargement or alteration. But however this may be, those who framed our constitution either supposed it impossible, or to them impracticable. In the fifth article of our constitution, which in this respect was not altered nor attempted to be altered by the late convention, the names of our courts are designated, but the extent of their respective powers is scarcely attempted to be defined. Several sections of that article suppose alterations possible ; and the sixth section, after reciting some powers heretofore used or given, says: “ and the legislature shall vest in the said courts (the Supreme Court and Common Pleas) such other powers to grant relief in equity, as shall be found necessary, and may from time to time enlarge or diminish those powers, or vest them in suck other courts as they shall judge proper, for the due administration of justice.” Now if, instead of recurring to the beau ideal of a perfect separation of the legislative power from the judicial, a recurrence had been made to these plain expressions, it would have been seen that the legislative powers extend to enlarging or limiting, and of course to regulating the powers of the Supreme Court and Common Pleas. They have not in this case tried or decided the cause, but only given power to try it; or only directed that it shall be tried by the court in the ordinary and constitutional mode: the law by the court with power to grant a new trial, if it ought to be granted, and the decision of the court in matters of law revisable on a writ of error. Granting motions to open judgments was originally a power only exercised by chancery, but has long, even where there is a Court of Chancery, been exercised by the courts of common law. It has been decided in *2867 Serg. & Rawle 207, that a writ of error does not lie to a decision of the Common Pleas, on opening or refusing to open a judgment; hence, we have little in our books on the subject. In New York, 3 Johns. 142, the court award an issue where there are contradictory-statements, and stay proceedings until the issue is tried. 2 Johns. Cases 260; 9 Johns. 80, 263. Courts possess an equitable jurisdiction over judgments entered on warrants of attorney; and in this state, courts have always had and exercised such power. It is an abuse of terms to say it is interfering with a right a person has acquired. You may as well say it is interfering with a right already acquired, to permit a defence to a bond, or to permit a defence in ejectment against a title good on its face. It is as necessary “ to the due administration of justice,” to inquire into the fairness of a claim founded on a bond with warrant to confess judgment as on a simple bond: and a judicial system which did not admit of this, would be lamentably defective. Even if a judgment is obtained on a writ sued out and served, if there has been fraud, courts open it and sometimes reverse it.
I have said, opening a judgment and granting a new trial was originally a power exercised by Courts of Chancery. They went much further, and granted injunctions after a trial and judgment. Who does not know of the long and acrimonious contest as to the power and right of a Court of Chancery to grant relief against the penalty of a bond not paid till a day after it was due 1 This was settled by an Act of Parliament, made expressly to change the law and compel the courts to give judgment, not for the penalty, but the debt and interest; or rather, as it was obstinately construed, to give judgment for the penalty, but issué execution for the debt and interest only. In process cf time, the law courts granted new trials and opened judgments, and from comity Chancery ceased to do so; but it still retains the power to do so, and in proper cases exercises the power where courts of law have refused. See Hart v. Simpson, (14 Johns.), and the cases cited in the argument and decision of that case.
The power of the legislature to enact that a new trial should be granted in this case, is within the express words and spirit of our constitution; it was not questionable, and ought never to have been questioned. If the notion that the court is to decide on matters of fact, is at all general, the law ought to have been general, that the facts should in all cases be submitted to a jury. We have had some dispute as to the meaning of that clause in our constitution which says “.trial by jury shall be as heretofore.” Without writing a dissertation on it, I may say, it means that disputed facts shall be tried by a jury. This court have uniformly reversed a judgment where the court has attempted to decide on facts, or take the decision of them from the jury.
I need not say to any lawyer that one section of a law may be plain and another obscure, or one entirely unexceptionable and *287another unconstitutional. I have endeavoured to show the 10th section was strictly within the constitutional power of the legislature. It would, if the court was disposed to treat another branch of the government with respect, have followed, of course, that proceedings would have been stayed until the issue was tried; but the legislature provided for this, and directed in plain terms that all orders and precepts of the court should be stayed until the question of payment aforesaid should be tried by a jury. In any other county, with any other court and counsel and sheriff, this would have been obeyed. The words “ all orders and precepts,” included every process of every kind. The Common Pleas of Fayette disregarded this, because they held the whole law to be unconstitutional; and they came to this conclusion by mistaking the power of the legislature, their own power and duty, and by mistaking the meaning of a plain law, not trying and deciding the cause, but directing that it should be tried according to the laws and practice of the constitution.
But this 11th section is said to be obscure by the judge who held the, special court. I could wish the opinion had been expressed in other terms, if not in respectful terms. I wish he had abstained from contemptuous language. It does no good; it does not the judge who uses such expressions; it is not consistent with the respect which one branch of our government owes, and ought always to show towards the other branches. That laws have been enacted, the meaning of which learned men’have pronounced obscure, is not new. Bacon, Plowden, Coke, and all their successors, have laid down rules for the construction of statutes; but no rules are necessary unless there is some obscurity.
Comyn, Viner, Bacon, and every abridgment and compiler as late as Dwarris, and every judge as late as Tenterden, have laid down or collected such rules. Among the plainest of these rules is, that the evil complained of, and the remedy intended shall be considered; that clauses which appear contradictory shall, if possible, be reconciled or applied to different stages of the transaction. The legislature were informed that the court had repeatedly and finally refused to open this judgment, and to stay execution ; that an execution was then in the hands of the sheriff — and after directing that all proceeding should be stayed as above, they say, “ and all sales, should any be made on the stayed judgments, of the real or personal estate of the said defendant, shall be void until the facts alleged in the petition of said defendant shall be tried by a jury as aforesaid.”
Now, it cannot be supposed that, in the same sentence, the legislature directed twice that all proceedings should be stayed, and yet supposed they would not be stayed, and also provided that a sale, which should be made, might in a certain event be good. The sentence is awkwardly constructed; but to me its meaning was always apparent. Without changing one word or *288letter, I read it, “ and all sales, should any be made on said judgments of the real or personal estate of defendant until (before) the facts alleged in the petition of the defendant shall be tried by a jury as aforesaid, shall be void.” This was making an absolute provision for all sales occurring after the passing of the Act; it met the evil complained of, and stopped future wrong. But it was possible sales might be made before the law was finally passed, and a provision is made for this; for so I understand the following clause — “ and should the jury on the question aforesaid, find for the defendant, then such sales to be void and of no effect; but if the said jury shall find otherwise, then the said sales to remain in full force and virtue.” Certainly this section, taken together, is obscure. We are to judge from the whole. The direction that all proceedings, all sales, shall be stayed, is plain; but sales might be made before the Act was passed ; if so, these were, if otherwise fair, to abide the event of the trial on the question of payment of the bond. This construction will give effect to the law — any other will make the parts of the section contradictory; and then, “where a particular thing is distinctly given or limited in the preceding part of a statute, that shall not be taken away or altered by any general words of the same statute. 5 Bing. 180; and this more particularly, if the latter clause is obscure or indefinite. 1 Jones 26; 6 Rep. 19 b; 11 Rep. 68.
There is another part of this case to which I decidedly object. The judge says, “ In this state, the reception of an acknowledgment of a sheriff’s deed is a judicial act, in the nature of a judgment of confirmation of the acts preceding the sale, curing all defects in process or its execution, which the court has power to act upon. When the acknowledgment is once taken, every thing which has been done is considered as done by the previous order or subsequent sanction of the court, and cannot afterwards be dis-affirmed collaterally.” This I believe to be contrary to the uniform practice and understanding of the bar and the court, and to the express decision of this court whenever disputed; and supported only by one case in 1 Baldwin. If the matter depended on practice alone, it ought to be conclusive. “ It is from decided cases, where the point has been raised and argued, and from the long-continued practice of the court without objection made, that we collect the rules of law,” says Lord Ellenborough, 15 East 226. Lord Eldon says, “ An inveterate practice in the law generally stands upon principles founded on justice and convenience.” Buck. 279. And again, “When the law has been settled by long-continued practice, counsel do not take a right view of their duty, if they seek to disturb that settled course of practice. The settled course forms the law of the land, and the judge is bound to follow that law so settled.” 2 Russell 19. Lord Coke, in more than one place, cites with approbation, contemporánea expositio est fortissima in lege.
*289In Wilson v. M’Veagh, (2 Yeates 86), it was contended that a purchaser at sheriff’s sale could recover on production of the deed duly acknowledged; but decided he must show the judgment and fieri facias, inquisition and vend. ex. This was before Shippen and Yeates; the first was a lawyer of more than 46 years’ standing, and the other of 36. If the doctrine laid down in this case was true, nothing but the deed would have been necessary. The same decision was made by this court. Weyand v. Tipton, (5 Serg. & Rawle 332); Duncan v. Robeson, (2 Yeates 454). A sheriff's sale in 1771; sheriff went out of office, and, on petition, his successor executed a deed; but it was not acknowledged until 1799, which was four years after ejectment: the deed objected to, but admitted. The deed takes effect from its sealing and delivery, not from the acknowledgment; but the defendant may make every objection which could have been made at the return of the writ.
. In the next case, Moorhead v. Pearce, (2 Yeates 456), the sheriff’s deed had never been acknowledged, but had been proved by a subscribing witness, and recorded, and the court said the Act of 1705 was only directory; the plaintiff recovered. These cases seem to prove that as a common deed could only be recorded, and copy used if acknowledged or proved before the proper officer, yet could be acknowledged or proved at a trial in court.So a sheriff’s deed could only be acknowledged by him in court, but might be authenticated by the common law proof, and took effect from the sealing and delivery; and the court had no idea that any efficacy was given to a sheriff’s deed by acknowledgment, more than is given to any other deed by acknowledgment before a judge or justice. It enabled the party to read it in court without objection as to its execution, but left it open to every other objection. The proceeding under the Act of 1802, before two justices to recover possession, is by positive enactment.
It is true, that in Murphy v. M’Cleary, (3 Yeates 405), it was said a sheriff’s deed, which had not been acknowledged in court, could not be read, and that an acknowledgment in court before the return-day of the writ of venditioni exponas was void — a matter not settled to be law: but it is also said that you could not prove misconduct in the inquisition. That case went off on a non-suit. There was no opportunity to objept to the inquisition. The inquisition was held after the April Term, and it was sold on the 14th of May, on a venditioni exponas, which the jury would have found, issued on the 13th of May, returnable to August Term, and deed was acknowledged on the 15th of May. Cases which are covered with fraud so palpable that the plaintiff abandons them, are not often much considered. On a second trial, the plaintiff abandoned his cause before the defendant had given any evidence.
In Porter v. Neelan, (4 Yeates 108), the plaintiff claimed under *290a sheriff’s deed. No objection is made as to the acknowledgment, but the court decided the sale void, because no venditioni exponas issued. In 4 Yeates 212, a sale by sheriff was held invalid, because no venditioni exponas issued until the day of sale, and the sheriff’s deed was acknowledged at an adjourned court before the return-day of the venditioni exponas.
In 4 Yeates 341, a sheriff’s sale and deed acknowledged in open court. A rule was afterwards obtained to show cause why this sale should not be set aside. On argument, the sale was ratified and confirmed. Other creditors levied on and sold the property again. The first purchaser brought ejectment; the second purchaser offered to show fraud in the first sale. The acknowledgment of the deed by sheriff, and confirmation of the sale by the Common Pleas, were alleged to be conclusive. The court admitted the judgment of a court on some questions was conclusive, but said it did not apply. “ The Common Pleas decided that the sheriff’s deed should be acknowledged. That gave it no greater validity than if acknowledged without opposition. In which case such sales have been frequently impeached, and have always been held to rest on their own fairness and merits.” It was proved a fraudulent claim by an adverse party was used to get the land at an undervalue ,* and a verdict against the first purchaser in twenty minutes.
I shall not go through all the eases in which purchasers at sheriff’s sale have had the fairness and legality of the sale tried in ejectment; but notice some in which the matter has been discussed and decided on. In 4 Binn. 61, we find Heller v. Jones. George Miller had sold a tract of land to Heller and given a deed with warranty. A man called Mounce Jones had a claim to it. Jones had confessed a judgment to N. Jones, who issued a scire facias to continue the lien and show cause why execution should not issue. This was served on M. Jones and Heller, neither of whom appeared, but Miller appeared and pleaded, and gave notice of special matter, viz., that the judgment was given without consideration and fraudulent. At the trial neither Miller nor Heller appeared, nor did their counsel take any part, and there was verdict and judgment for N. Jones, who' took out execution, and in due form sold the land on which Heller lived and purchased it, and brought ejectment. Miller was made co-defendant on his own application. The land was valuable, and able counsel. It was never alleged by court or counsel that the sheriff’s deed, duly acknowledged, concluded the inquii’y; but Tilghman and Yeates decided that Miller and Heller were to be considered as one, and the appearance and pleas to the scire facias, and judgment thereon, concluded them from showing anything which might have been, though it was not, shown in the scire facias suit. Brackenridge would have admitted it in the ejectment.
In Nace v. Hollenback, (1 Serg. & Rawle 540), the same point *291came up, and it is decided in the same way; but it is expressly said, that if Nace had not appeared and pleaded to the scire facias on the mortgage on which his land was sold, he might have proved what he offered, viz., fraud, &c., in the plaintiff purchaser. In Field v. Earle, (4 Serg. & Rawle 82), a sheriff’s deed was offered for acknowledgment, and objected to on the ground of fraud in the plaintiff purchaser. The court admitted the deed expressly for the purpose of enabling the purchaser to bring ejectment, so that the question of fraud might be tried by a jury, who alone could decide on disputed facts, or infer fraud from facts.
In Riddle v. Murphy, (7 Serg. & Rawle 230), it was decided that in ejectment by the heirs of the defendant, whose land had been sold by the sheriff, they might recover on proving fraud in the judgment or in the sale. In Gilbert v. Hoffman, (2 Watts 66), the devisee of the defendant, whose land was sold, was held entitled to recover against a purchaser at sheriff’s sale, who unfairly made representations on account of which it was alleged he got the land cheaper. In M’Kennan v. Pry, (6 Watts 137), the same point was decided in the same way. In Hoffman v. Strohecker, (7 Watts 86), in ejectment the land was recovered against a sheriff’s deed-on a regular sale, but on a satisfied judgment, which the purchaser knew was satisfied.
In this case there was fraud in the party plaintiff and purchaser alleged. His levy was as follows: “Levied on all the right, title, interest and claim of the defendant in and to a certain tract of land lying in Union and George township, on which there is erected two log dwelling-houses, two barns, and other out-houses, and apple-orchard, containing 380 acres, more or less, about 25Ó acres cleared, 30 of which is meadow, adjoining lands of Stephen Mackey, John Hagan, and Nathaniel Ewing, Esq., and others; subject to the claim which the plaintiff has in and to the same, which plaintiff alleges is-200 acres.” Now, in a former trial, this claim to 200 acres had been submitted to the court and jury, and the claim of Brownfield had been found to be absolutely nothing, and at this trial was not even brought to the notice of court and jury.
In several of the cases cited, declarations and conduct of the purchaser, whether plaintiff in the judgment or a third person, tending to check the bidding, and get the property at a less price, wer.e left to the jury as evidence of fraud, and found by the jury, with the approbation of the court, to be such fraud as to avoid the sale.
Could any representation by verbal or written notice be so strong as the words of this levy ? Add to this the uncertainty as to the title from this Act of Assembly; and there is no case which is so strongly tinctured with fraud. Yet the judge says, “whether the Court of Common Pleas did right in confirming the sale under all the circumstances, (considering the effect of the wording of the levy “ subject to the claim of Brownfield to 200 acres” of the *292land, and besides the shade cast on the title offered for sale, the uncertainty created by this Act of Assembly,) is not a question open for the decision of this court.” But it ought to have been left to the decision of a jury. He had before said, “ in this state the reception of the acknowledgment of a sheriff’s deed, is a judicial act in the nature of a confirmation of all acts preceding the sale, curing all defects in process or its execution, which the court had power to act upon. Everything which has been done is considered as done by the previous order or subsequent sanction of the court, and cannot afterwards be disaffirmed collaterally.”
Before I remark on this, I shall cite one more case, Cash v. Tozer, (1 Watts. & Serg. 519). Avery Gore had a judgment against A, B & C. A and B gave a power to C to sell their land; Gore levied on it. C gave an agreement to waive inquisition, (as may be done by a defendant whose land is levied on), and that the land might be sold on the fieri facias. It was sold in April. The deed was not made at April Term, nor August Term, nor November Term. It was said this delay was occasioned because the power of attorney to C was not at hand. In December, the property (a steam-mill) was burned down. At January Term the power of attorney was produced, and the deed offered for acknowledgment, and this was opposed by Cash and Webb, who had bid it off. The court, after argument, admitted the deed to acknowledgment, and it was duly acknowledged, and the sheriff Tozer sued for the purchase money. At the trial, the judge, on the authority of Judge Baldwin, decided that the acknowledgment made a final end of the matter. This court unanimously reversed that judgment, and sent the cause back to be tried on all the facts; and in that case it was held the court erred in matter of law, which was peculiarly within their jurisdiction.
But in this case there was no hearing of objections; the court would not listen to Braddee’s counsel, because the case was not before them. If the Act was void, the cause was before them, and had never been removed. The cases cited show that this court has always, where facts were disputed, left them to a jury —have taken the acknowledgment of a deed objected to, in order that the matter might be fried in an ejectment. In point of fact, the receiving an acknowledgment is no more the judicial act of the court than taking an acknowledgment of a private deed is the judicial act of a judge or justice. The one and the other attest the execution so that the deed may be recorded by recorder of deeds or prothonotary, and read in court, without other proof of due execution; but leave the one and the other open to every other objection. So the law has been held, and must and will be held, until our whole system is changed, and facts taken from the jury and the power over them assumed by the court; the constitutional provision to the contrary notwithstanding. There does exist in *293the minds of some lawyers and judges, an idea that juries are not to be trusted: but they must and will be trusted. A pretty long and general acquaintance with the administration of justice has raised no unfavourable opinion of them in my mind. They are an important and essential part of the court. The attempt to lessen their share in the administration of the laws, if it has any effect, will be to lessen the power, and influence, and usefulness of the judges.
There is another point in Thompson v. Philips, which I totally deny, viz.; that a sheriff’s sale will pass any title where no fieri facias, or where a fieri facias is levied after the return-day, inquisition and condemnation, without a previous levy on a writ which has been levied. I thought it was known and not disputed, that no act, whether on mesne or executive process, was of any validity unless done before the return-day of the process. The inquisition is not the act of the sheriff; he signs it to show that it was done in pursuance of his writ, and that the jury was summoned and sworn by him. A sale after the return-day of the venditioni exponas was tolerated on the fiction of the whole term being one day.
In point of fact, the acknowledgment of a deed by the sheriff is taken without knowing or inquiring whether there was a judgment, or fieri facias, or inquisition, or venditioni exponas. The certificate on the docket, or on the deed, does not state or purport any more than that the officer acknowledged the execution of the deed; it does not even amount to a delivery of it. Robins v Bellas.
On both points I would reverse the judgment, and order a venire de novo.
Judgment affirmed.