DAYTON, District Judge
(sitting specially, after stating the facts as above). This matter has been argued orally and by briefs by all attorneys engaged to great length and with conspicuous ability. Very many perplexing questions have been suggested, the solution of which in my judgment would require a long and patient study of the history and evolution of the modern action of ejectment as regulated by legislative enactments from time to time. For instance, it is earnestly insisted for the Dickensons that (a) the writ cannot be executed with Taylor the sole defendant dead; (b) that the case cannot be revived, since Taylor, before judgment, abandoned the premises, and his heirs have never claimed the land or been in possession of it; (c) that a writ of possession against Taylor, whose tenancy and possession ended long before the issuance of the writ, cannot be used to evict a later tenant, who was not nor was his landlord nor those under whom the landlord claims ever parties to the suit or to the judgment upon which the writ issued; (d) that the return of service of the original declaration upon Taylor is void because verified before a notary who has not attached his seal thereto; and (e) that, under the descriptive terms of the writ following the judgment, the triangle of land in controversy is not included, the call, “thence leaving the fork with original Steele line N. 76° F. 1,310 poles to beginning corner of the 19,500 acres,” only warranting the following of the “original Steele [704] line” of N. 40° 1,500 poles to the Skiles pine and beech corner, and then by the omitted line N. 100 poles to the beginning. On the other hand, it is earnestly contended that this action of ejectment was brought prior to the act of February 28, 1877, which for the first time allowed the landlord to be sued, although he might appear and cause himself to be made a defendant; that, therefore, plaintiff could only sue the tenant in possession; that all such changes in the title and possession pendente lite must be held to have been made with notice and subject to the judgment in such action; that the Lewis heirs are estopped by the court’s decree releasing Norris and Clarke from paying for, these 400 acres of land under their purchase from John D. Lewis because the same had been lost by Huntington’s recovery; that Norris and Clarke, from whom the Lewis heirs derived back the title, having appeared and sought to set aside the verdict, bound themselves and their vendees by such judgment and estopped all further assaults thereon, except by appeal, for either technical or other defects in the judgment, and in effect made themselves and their vendors, as owners, parties to the proceeding. To this is answered, however, that their motion to set aside was refused without prejudice to their rights in any other proper proceeding.
No matter how fascinating the idea may be, with the aid of so able counsel, to consider and seek to determine these and other very interesting questions suggested, I am fully persuaded that I must refrain from doing so, and simply hold that under the pleadings, or, rather, lack of pleadings, in this case, there is nothing before this court to determine. I can find no authority warranting the ascertainment and adjudication of independent rights vested in persons not parties, in an action at law, ended by verdict and judgment, simply at the instance of the marshal or other officer seeking instruction from the court as to how he shall perform his ministerial duties in execution of the judgment. When the judgment was finally confirihed in this case, the rule to set aside, and annuli, dismissed, and the writ of possession awarded, the case in my judgment became an ended cause, and-no further action could be taken as between the parties thereto without a reconvention of them by some proper and authorized method of procedure. For the marshals simply because a notice in pais which, in legal effect, can have and must have no restraining effect upon him, to come to the court and ask for instructions, is no such “proper and authorized method of procedure” to effect such reconvention of the parties themselves, and a fortiori to convene new and additional parties claiming independent rights. The judgment is simply the precept of the law, and, when once enunciated, becomes final in the case unless set aside and annulled by fixed methods of procedure. The duty of the marshal, in execution of this precept of the law, is purely ministerial, and it is no right of his to appeal to the court whose sole duty it is to enunciate the law’s precept to instruct him how to perform such ministerial duty. He assumes the responsibility of knowing or of being willing and able to find out how to perform these duties when he assumes his office. In a writ of possession, based upon a judgment in ejectment, as in case of other executions based upon [705] judgments, it is his plain duty to obey the mandate of his writ. The court will not order such officer to execute a writ of possession in any particular manner. Bowie v. Brahe, 4 Duer (N. Y.) 676; Id., 2 Abb. Pr. (N. Y.) 161. The plaintiff should point out the premises to the officer, who should deliver possession according to his direction, but he, the plaintiff, on his part, must tape possession at his peril. Den v. O’Hanlin, 18 N. J. Law, 127; Simpson v. Shannon, 5 Lilt. (Ky.) 322; Jackson v. Rathbone, 3 Cow. (N. Y.) 291; 15 Cyc. 188. The law’s precept, as enunciated in the judgment, is not to be presumed by such ministerial officer to he cither wrong or defective, and he is certainly not to be deterred in its .execution by any notice or protest that may be presented to him by private individuals. For courts to permit marshals or sheriffs to suspend the execution of the law’s command every time a private individual might see fit to protest to him, and come back for “instructions,” would simply lead to confusion worse confounded.
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DAYTON, District Judge
(sitting specially, after stating the facts as above). This matter has been argued orally and by briefs by all attorneys engaged to great length and with conspicuous ability. Very many perplexing questions have been suggested, the solution of which in my judgment would require a long and patient study of the history and evolution of the modern action of ejectment as regulated by legislative enactments from time to time. For instance, it is earnestly insisted for the Dickensons that (a) the writ cannot be executed with Taylor the sole defendant dead; (b) that the case cannot be revived, since Taylor, before judgment, abandoned the premises, and his heirs have never claimed the land or been in possession of it; (c) that a writ of possession against Taylor, whose tenancy and possession ended long before the issuance of the writ, cannot be used to evict a later tenant, who was not nor was his landlord nor those under whom the landlord claims ever parties to the suit or to the judgment upon which the writ issued; (d) that the return of service of the original declaration upon Taylor is void because verified before a notary who has not attached his seal thereto; and (e) that, under the descriptive terms of the writ following the judgment, the triangle of land in controversy is not included, the call, “thence leaving the fork with original Steele line N. 76° F. 1,310 poles to beginning corner of the 19,500 acres,” only warranting the following of the “original Steele [704] line” of N. 40° 1,500 poles to the Skiles pine and beech corner, and then by the omitted line N. 100 poles to the beginning. On the other hand, it is earnestly contended that this action of ejectment was brought prior to the act of February 28, 1877, which for the first time allowed the landlord to be sued, although he might appear and cause himself to be made a defendant; that, therefore, plaintiff could only sue the tenant in possession; that all such changes in the title and possession pendente lite must be held to have been made with notice and subject to the judgment in such action; that the Lewis heirs are estopped by the court’s decree releasing Norris and Clarke from paying for, these 400 acres of land under their purchase from John D. Lewis because the same had been lost by Huntington’s recovery; that Norris and Clarke, from whom the Lewis heirs derived back the title, having appeared and sought to set aside the verdict, bound themselves and their vendees by such judgment and estopped all further assaults thereon, except by appeal, for either technical or other defects in the judgment, and in effect made themselves and their vendors, as owners, parties to the proceeding. To this is answered, however, that their motion to set aside was refused without prejudice to their rights in any other proper proceeding.
No matter how fascinating the idea may be, with the aid of so able counsel, to consider and seek to determine these and other very interesting questions suggested, I am fully persuaded that I must refrain from doing so, and simply hold that under the pleadings, or, rather, lack of pleadings, in this case, there is nothing before this court to determine. I can find no authority warranting the ascertainment and adjudication of independent rights vested in persons not parties, in an action at law, ended by verdict and judgment, simply at the instance of the marshal or other officer seeking instruction from the court as to how he shall perform his ministerial duties in execution of the judgment. When the judgment was finally confirihed in this case, the rule to set aside, and annuli, dismissed, and the writ of possession awarded, the case in my judgment became an ended cause, and-no further action could be taken as between the parties thereto without a reconvention of them by some proper and authorized method of procedure. For the marshals simply because a notice in pais which, in legal effect, can have and must have no restraining effect upon him, to come to the court and ask for instructions, is no such “proper and authorized method of procedure” to effect such reconvention of the parties themselves, and a fortiori to convene new and additional parties claiming independent rights. The judgment is simply the precept of the law, and, when once enunciated, becomes final in the case unless set aside and annulled by fixed methods of procedure. The duty of the marshal, in execution of this precept of the law, is purely ministerial, and it is no right of his to appeal to the court whose sole duty it is to enunciate the law’s precept to instruct him how to perform such ministerial duty. He assumes the responsibility of knowing or of being willing and able to find out how to perform these duties when he assumes his office. In a writ of possession, based upon a judgment in ejectment, as in case of other executions based upon [705] judgments, it is his plain duty to obey the mandate of his writ. The court will not order such officer to execute a writ of possession in any particular manner. Bowie v. Brahe, 4 Duer (N. Y.) 676; Id., 2 Abb. Pr. (N. Y.) 161. The plaintiff should point out the premises to the officer, who should deliver possession according to his direction, but he, the plaintiff, on his part, must tape possession at his peril. Den v. O’Hanlin, 18 N. J. Law, 127; Simpson v. Shannon, 5 Lilt. (Ky.) 322; Jackson v. Rathbone, 3 Cow. (N. Y.) 291; 15 Cyc. 188. The law’s precept, as enunciated in the judgment, is not to be presumed by such ministerial officer to he cither wrong or defective, and he is certainly not to be deterred in its .execution by any notice or protest that may be presented to him by private individuals. For courts to permit marshals or sheriffs to suspend the execution of the law’s command every time a private individual might see fit to protest to him, and come back for “instructions,” would simply lead to confusion worse confounded.
The rule that he is to he guided in the location of the property by the directions of the plaintiff, where doubt arises in his mind as to such location, which instructions are to be given, however, by the plaintiff at his peril, is based upon both law and sound sense. The facts in this case, purely as an illustration and without expressing any opinion thereon, tnay, he referred to to emphasize this statement. It is admitted that defendant Taylor took possession of and cleared a-small parcel of land entirely over on the Steele side of the original Skiles division line of “S. 40° W. 1,500 poles.” Suppose plaintiff’s purpose had been and was to recover this parcel, without doubt or controversy embraced in his boundary, but Dickenson, misconceiving his purposes, gave the marshal notice to stay off; how can location be pointed out to the officer by any other than the plaintiff whom the law holds responsible for his act? Suppose the marshal had followed the private judgment and advice of an individual not party to the proceeding and refused to execute the writ, could he recourse on such private person for the damages recoverable against him by the plaintiff for his failure to act? But it is insisted, perhaps, that to allow the officer to thus rely upon the instructions of the plaintiff may deprive the true owner of his rightful possession without opportunity to defend himself. Not so. He has Immediate right to come, by proper proceeding regularly taken, and defend himself against the ouster, or, if turned out, to recover his possession. He cannot do so by simply serving notice on the marshal and requesting him to apply to the court for “instructions,” and then, without being properly a party to the suit (for he cannot become such, it being ended), secure a determination of his rights that will have no binding effect upon him if he desires not to abide by it.
Thus it being clear to me that theie is no authority for the marshal to ask for, and this court in this ended law cause, to give instructions as to how he shall perform his duty in the execution of this writ, it is also very clear that this court has no jurisdiction or right, even at the request or upon agreement of the parties, to pass upon the matters in controversy between them. These questions, so far as [706] this case is concerned, are merely moot ones. As well said in Thomas v. Musical Mutual Protective Union, 121 N. Y. 45, 24 N. E. 24; 8 L. R. A. 175:
“Courts do not sit for the purpose of determining speculative and abstract Questions of law, or laying down rules for the future conduct of individuals in their business and social relations; but are confined in their judicial action to real controversies wherein legal rights of parties are necessarily involved, and can be conclusively determined.”
And in Taylor v. Mutual, etc., Life Association, 97 Va. 60, 33 S. E. 385-390, 45 L. R. A. 621:
“Whenever a court determines that it has no jurisdiction of a case, it should express' no opinión upon the merits of the controversy. The only course which a court can rightfully pursue in such a case is to decline to speak at all where it cannot speak by the law.”
It therefore follows that this court will refuse to give any instructions to the marshal, and, believing itself to be without jurisdiction over the parties in this proceeding as it stands, will decline to determine any questions presented upon this motion, such declination being entirely without prejudice to all parties to assert and defend any and all rights they have by any proper proceeding they may institute or in any that may be instituted against them, and this case will be stricken from the docket and ended without further costs to .any one.