The question then is, whether Layton & Sipple had, at the time of the sheriff's levy, such a possession of these goods, either actual or constructive, as will enable them to maintain replevin. Originally, in England, a fi. fa. was held to bind the goods of the defendant from its test, which often operated great injustice by invalidating intermediate fair sales; to remedy which the Stat 29, Car. 2, ch, 3, sec. 16, commonly called the statute of frauds, enacted that the execution should bind the goods only from the time of its delivery to the sheriff, which is the provision of our act of assembly. (Tidd's Prac. 914.) But we apprehend that this lien does not operate to change the property in the goods until actual seizure, in England; or a seizure, or at least an inventory and appraisement here; which seems to be regarded in our practice as equivalent to a levy. (1 Harr. Rep. 107.)

It is admitted in this case that actual possession was not delivered to Layton & Sipple, until after the execution against M'Laughlin went into the sheriff's hands. But it is contended, that as the vendees under the bill of sale of the 19th of July, they had such a constructive possession as will entitle them to maintain replevin against the sheriff for taking the goods afterwards.

But the question still is, did the sheriff take the goods after the plaintiffs acquired either an actual or constructive possession? The plaintiffs are bound to prove this, there being a plea of non-cepit. The proof is that the bill of sale was made between eight and ten o'clock, P. M., and the inventory and appraisement at twenty minutes past eight o'clock on the same day. The sheriff so states in his return. He is a party here, and this may be controverted; but if not disproved we must take it to be true, that the sheriff was in actual possession of these goods at twenty minutes past eight o'clock on the same evening when the plaintiffs, between eight and ten o'clock, purchased the goods of Anderson. This proof does not satisfy us that the sheriff took the goods from their possession.

Neither can we sustain the action on the suggestion that plaintiffs sue as assignees of Anderson, who was in possession when the sheriff levied. Such a taking is not the wrong complained of in the declaration, which sets out a possession in Layton & Sipple.

Ridgely, for plaintiffs.
Houston, for defendant.

Nonsuit granted.

J. SPRINGER'S Adm'x. vs. S. P. JOHNSON et al.

By agreement between debtor and execution creditor, the defendant's land was sold without first selling his goods; and the sale was confirmed; though objected to by a junior judgment creditor who had not power to issue an execution.

A writ of fieri facias was issued in this case against the defendant, Johnson, on a judgment recovered against him, and was returned "nulla bona by agreement of parties, levied on land, inquiry held and not sufficient." Venditioni exponas and sale of the land of the

defendant, Johnson.

George Houston, another judgment creditor of Samuel P. Johnson, now filed an affidavit that the land was sold without first selling the personal property of the defendant, the return of nulla bona being by agreement between the parties; which he alledged operated injuriously to his interest; and he moved to set aside the sale on this ground.

Gilpin and Rodney, for other creditors, and Whiteley, for the purchaser, opposed the application, and contended that the omission to levy on and sell the personal property, was a matter of personal privilege to the defendant, which he might waive; and, if the plaintiff in that execution consent, no other could complain. That Mr. Houston or any other creditor could not be prevented by such agreement from levying and selling, if his judgment was in a condition to levy; and, if it was not, he had no right to be aided by the process of this party, who waived his lien on the goods.

Wm. H. Rogers, contra, contended that there was no authority to sell the land until after a sale of the goods; and that the defendant could no more waive the sale of his goods than he could waive the pre-requisite of an inquisition on, and condemnation of, the lands. (1 Harr. Rep. 347, Wilson's adm'r. vs. Hukill; Dig. 204.)

The effect of this mode of proceeding has been in fraud of George Houston, whose judgment was not in a condition to execute. The plaintiff in this case by issuing execution, obtained a lien on the defendant's goods, which ought to have gone to satisfy his judgment, and then the plaintiff's judgment (which was a prior one,) would have been satisfied out of the land.

Per Curiam:

HARRINGTON, Justice.-The right to have his land protected from sale while he has personal property, is a protection and privilege to

the defendant which he may waive, if he does not by such waiver affect the legal rights of any other. (4 Yeates' Rep. 21.) It may often be greatly to the benefit of a defendant to sell his land before his personal chattels, which may be more necessary for the comfort and support of himself and family than the land; and if he and the execution creditors agree to this, we do not see how the legal rights of any other persons can be effected.

The plaintiff and defendant in this execution and also the purchaser of the land, wish the sale confirmed; but objection is made by George Houston, who by affidavit shows himself to be a younger judgment creditor, but without execution; his judgment not being yet due. He objects that the sale of the defendant's land under Mrs. Springer's judgment and execution, before selling the defendant's goods, is an injury to him; because, if the goods, upon which he has no lien, were first sold on Mrs. Springer's execution, the amount of sales would go to satisfy her judgment, and leave the land, upon which his judg ment is a lien, to satisfy his debt.

This is an advantage that Mr. Houston might acquire if Mrs. S. chose to sell the goods under her execution; but it is one which he cannot compel. He has no control over her execution. She does him no more wrong by omitting to levy on the defendant's goods, for the purpose of sale than she would by omitting to issue the execu tion, and the agreement between her and the defendant to pass over his personal property and sell the land, is not any use of her execution process of which Mr. Houston has the right to complain.

Neither does the sale of the land without the goods, deprive Mr. Houston of any lien or other right, or even place him in any worse condition. He has no lien on the personal estate, nor any right to control it. His security for his debt is a judgment lien on the land, without the power of executing the goods, and which leaves the goods in defendant's hands, subject to all the risks arising from his possession of and power over them. The agreement between Mrs. Springer and the defendant still to leave them in his hands does not increase this risk or take away from Mr. Houston any rights in relation to them, When his judgment falls due he can take them in execution, if they are still to be found; if not, it is one of the risks against which he has not provided in taking a security upon the land alone.

The case of Wilson's adm'r. vs. Hukill, 1 Harr. Rep. 347, does not conflict with this view. It was there decided that an inquisition could not be held upon defendant's lands without selling his goods

(he objecting,) because the proceeds of the sale of his goods might save his land from condemnation and sale. This is his privilege; given to him by the act of assembly. But if he waive his privilege and consent to the inquisition and sale, third persons whose rights are not effected by it cannot complain.

Rule set aside and sale confirmed.

Wm. H. Rogers, for the rule.
Gilpin, Rodney and Whitely, contra.

In the matter of JOHN S. DICKENSON.

On motion of Mr. Wales and affidavit of John S. Dickenson, stating that he had been subpoenaed as a witness to testify in a cause now pending in this court and for trial, and that he was this day arrested whilst on his way to attend the court, on civil process at the suit of Elisha Huxley, to wit: on a ca. sa., and was now in custody, the court ordered his discharge from custody.

The witness is privileged from arrest during his attendance on the court, and whilst coming to or going from the court. The discharge being against the plaintiff's consent, will not affect the plaintiff's right to take out another ca. sa. after the defendant's privilege as a witness has expired.

JAMES C. PRITCHETT, surviviug partner of James and Wm. Pritchett vs. JEHU & THOMAS CLARK. (See ante 241.)

The judgments of courts of other States are conclusive in all the States, if it appear that the court rendering judgment had jurisdiction of the parties and subject. These essentials of jurisdiction may be denied by a special plea, even against the record.

"Full faith and credit" are to be given to the judgment records of other States, when these pre-requisites appear; if they do not appear, or be denied, they must be established, or the judgment has not the force of a domestic judgment.

This was an action in the Superior Court of the State of Delaware by James C. Pritchett, surviving partner of James and William Pritchett, against Jehu Clark and Thomas Clark, on a judgment re

covered against the said Jehu Clark and Thomas Clark, in the District Court of the city and county of Philadelphia, in the State of Pennsylvania.

To this action the defendant Jehu Clark, now pleaded (inter alia,) that at the commencement of the suit in which the said judgment was recovered, he the said Jehu Clark was not, nor was he at any time before or afterwards, an inhabitant of the said State of Pennsyl vania, nor resident there, nor had property there; but was at the time of the commencement of said suit, and ever since hath been, and still is, an inhabitant of, and resident in the State of Delaware; that he was not served with any process in, and had no notice of, the said suit, and did not appear to or in the same, either in person or by an attorney or agent by him authorized.

The plaintiff in his replication set out the record of the Pennsyl vania judgment, and pleaded it as an estoppel; and the defendant demurred.

The record of the District Court showed that the suit in which judgment was there recovered, was commenced by capias against Jehu Clark & Thomas Clark, as partners." The writ was returned "C. C. and B. B." On motion of Thomas Budd, a rule was laid on plaintiff to show cause of action, and why defendant should not be discharged on common bail. Affidavit filed and rule dismissed; and special bail entered by Thomas Clark alone. Affidavit of defence made by Thomas Clark. The declaration was filed against both defendants; and plea for both by "Thomas A. Budd, attorney for defendants." Depositions taken on both sides; the death of William Pritchett suggested; trial by jury, and verdict and judgment for plaintiffs for $485 45.

D. M. Bates, for defendant, in support of the demurrer.—The replication assumes that the defendant is precluded by the record from alledging that he did not appear, and was not summoned in the original action. We take these positions-1st. That although the record did show an appearance of Jehu Clark in the original action, he is not concluded by that record from proving here to the contrary. ' 2d. That the record proves no such thing. The record of a judg ment recovered in another State is not conclusive, unless it appear that the defendant was served with process, or appeared in the cause. (Art. 4, sec. 1, Con. U. States.) "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State." This does not extend to extra judicial proceed