1804. May Term, "hattan Company say," &c. without mentioning by attorney, and so went on negativing the whole plea, without having their replication signed by counsel, • See Sand- concluding to the country,* and adding the similiter ford v. Ro gers, 2 Wils. on which they went to trial and took an inquest. 113. 2 Tidd's Prac. 673. plin v. Smal- Woods, on an affidavit stating these facts, moved to set the inquest aside, for irregularity. Bogert, contra. The replication is in the usual form. It is a mere negation of the plea, without alleging any new fact, and therefore not a special pleading. Besides, the name of a counsel is indorsed on the back. Be Per Curiam. There was no occasion for à counsel's hand; unquestionably the plea is not special. If it was, there is the name of counsel indorsed. sides, had it been so, it ought not have been retained. Let the defendant take nothing by his motion, and pay the costs of resisting the application. Simonds v. Catlin. THIS was an ejectment for lands in the county of Onondaga. Upon the trial the plaintiff produced the exemplification of a judgment of this court, in the cause of Levi Barker, against the defendant for debt, and entered of the term of July, venue was laid in Albany. exemplification of a fi. fa. 1800, in which cause the He further produced the directed to the sheriff of 1804. Onondaga, and tested the 9th day of August, 1800, May Term, commanding him to levy the debt and costs of the above judgment, and which execution contained an indorsement of being received by the sheriff on the 4th of October, 1800. It also contained a return annexed, in the words following, viz. "I, Levi Sherman, under sheriff to Elnathan Beach, Esq. late sheriff, deceased, do, in pursuance "of the law, and in consequence of the death of the "sheriff, return, that the said sheriff sold at vendue, "all that farm or tract of land in the town of Pompey, "in the said county, in the occupancy of the defend"ant, some time in January, 1801, and before the "15th, to one Ebenezer Butler, junior, he being the highest bidder, for 26 dollars. That the said But"ler did not pay the money for "order of the said sheriff, I did, the same; and by January aforesaid, expose the said land to sale "again, and that Joseph Simonds purchased the same "for 50 dollars, he being the highest bidder. That "the said sheriff died on the evening after the ven"due last aforesaid, and before the said writ was re"turned. And I, the said under sheriff, do make "this return, this 23d January, 1801. "Levi Sherman.” The plaintiff further proved, that the defendant, at the time of the sale, and at the commencement of the suit, was in possession of the premises. The defendant then moved for a nonsuit, and was overruled. He then offered to prove that the sale to E. Butler, junior, was not a ready-money sale, but at a credit, and that Butler had always been ready to pay, and that the se May Term, cond sale was made at the solicitation of the lessor 1804. of the plaintiff, who was the attorney in the original cause, without any notice by advertisement, and on his indemnity to the sheriff, who was then on his death-bed, and incompetent to attend to his business, and that the lessor of the plaintiff knew of the previous sale. The defendant further offered to prove, that the indorsement on the execution was made in May, 1802, at the request of the said lessor; but the testimony was overruled. The defendant then offered in evidence, a deed from the said Elnathan Beach to the said Butler, for the premises, in pursuance of the first sale, bearing date the 7th day of August, 1801, and to which deed was annexed a certificate of proof of the same before a master, by the acknowledgment of the said Levi Sherman, that he executed the same, in the name of the said Beach, and as under sheriff to the same, the said Elnathan being dead, which evidence was likewise overruled, and a verdict taken for the plaintiff. Upon this case, a motion was made to set aside the verdict, for these reasons: 1. That a fi. fa. issuing into a different county than that in which the venue was laid, without a testatum is void. 2. That the fi. fa. bore test out of term. 3. That there is no deed from the sheriff to the plaintiff. 4. That the return of the sale contains evidence of a void sale. 5. That the evidence offered at the trial ought to have been received. Per Curiam, delivered by KENT, J. The two first objections go to the form of the execution, and considering the circumstances attending this case, the 1804. plaintiff ought, in justice, to be held strictly to a legal May Term, title. He was the attorney who sued out the execution, and the second sale was made on short notice, if indeed any notice was given, and he himself became the purchaser. The plaintiff is, therefore, properly chargeable with notice of every irregularity attending the execution. Prior to this motion, a rule was granted to amend the fi. fa. by making it a testatum, but as the rule was granted upon the express condition of being without prejudice to the objection to be raised in this case, and which was then pending for argument, the court are justified in putting the amendment out of view. And there can be no doubt, but that the fi. fa. ought to be set aside for irregularity, on the ground of the first objection, as the cases of Allen v. Allen, and Brand v. Mears,* go that Black. Rep. length even after execution executed. 697. 3 D. & E. 388. See also Barnes, 209. 7 Mod. 30. The second objection to this fi. fa. that it bears test out of term, is equally well taken.† The process † 2 Salk. 700. for that reason, is held to be void, and the party suing Latch. 11. T. it out, cannot take advantage of it, although it may 1 Stra. 137, Jones, 150 justify the sheriff, and if the case be within the reach 138. of an amendment, yet as the amendment must always be a matter of sound discretion, I should not be inclined to grant it in the present case, for the reasons I have suggested. The next objection goes to the merits of the case, and is founded on the want of a conveyance from the sheriff. This is a question of importance and difficulty. It has been attended with doubt and embarrassment in my mind, but I have come to the opi 1804. May Term, nion, that the estate of a defendant, cannot pass at a sheriff's sale, but by deed or note in writing, to be signed by the sheriff, as the party or agent who passes * 2 Rev. Laws, 263. the estate. The act directing the sale of real estates on execution is silent, as to a conveyance from the sheriff; and yet a conveyance upon such sales, is dictated by the same policy that applies to all other alienations of land. Without a deed or note in writing, there would be no written document of the sale; for, in the first place, it is not requisite to the validity of the proceedings on execution, that the writ should ever be returned: nor is it requisite, even if a return be made, that the sheriff should specify with certainty the particular lands sold, or the name of the purchaser. It would be sufficient to state, that of the lands and tenements of the defendant, he had caused to be made the debt and damages specified in the writ, as he was thereby commanded. If, therefore, the estate passes upon the sale, without any writing whatever, the general policy of the law would, in this instance, be contravened, and would be productive of manifest public inconveniences. In the county where the lands in question lie, every conveyance, whereby any lands in that county may be any way affected in law, or equity, shall be deemed void against any subsequent purchaser or mortgagee for valuable consideration, unless recorded.* The present case is not within the act, because here is no subsequent purchaser to contend with, but cases of that kind must often arise, and if sheriffs' sales be not within the provisions of the act, it would work very great imposition and fraud. A purchaser would go to the records, and if he found no convey |