68 Pa. 389 | Pa. | 1871
The opinion of the court was delivered,
In this case the court below directed the jury to find a verdict in favor of the defendant, but delivered no opinion
It is undoubtedly the law, that a promise of indemnity is broken by the recovery of a judgment, against the person to whom the promise was made, and he may maintain an action upon it without proof of payment of the judgment: Stroh v. Kimmel, 8 Watts 157; Bank v. Douglass, 4 Watts 95 ; Carman v. Noble, 9 Barr 366, 371; Gardner v. Grove, 10 S. & R. 137, 139, Tilghman, C. J.; Miller v. Howry, 3 Penna. R. 374.
A judgment before a justice was obtained by George Keefer against Israel B. Dunkelberger, on the 7th May 1859, for $47.41, and on the 11th July execution issued to John Bamford, constable, and on the 30th July, the execution was returned “ no goods found.” On the22d August 1859, George Keefer gave John Bamford constable, a bond of indemnity, and on the next day an alias execution issued to said John Bamford, constable, which on the 12th September was returned “ no goods found,” and on the 8th October 1859, a pluries execution issued to John Bamford, constable, who on the 29th October returned levied on one mule and sold for $43, and money paid into office, which was received by George Keefer, who entered “ Received satisfaction” on the docket. Jonathan Dunkelberger commenced an action of trespass against John Bamford, for the taking of the said mule, and recovered a judgment against him for $316.56. This suit was defended by George Keefer, who employed counsel. This suit is brought by the plaintiff against the defendant, to recover the amount of the said judgment and all damages sustained by him.
In answer to this the defendant alleges that the bond does not apply to this case, but in this we think he errs, and his action proves that he thought it did. But his real defence is that upon a capias ad satisfaciendum issued by Dunkelberger on his judgment, Bamford was taken in execution, and discharged by the plaintiff’s attorney under the following order to the sheriff: “ The sheriff is hereby requested to discharge defendant at the costs of the plaintiff.”
This whole subject is considered, discussed and decided in Magniac v. Thomson, 15 Howard 281, and there is no doubt that at common law this judgment was satisfied, and the exception made by the 31st section of the Act of 16th June 1836, only applies where the discharge is at the request of the defendant.
But this does not dispose of the case, for the plaintiff is clearly entitled to such costs and charges as he has been put to, and such damages as he has sustained by a litigation, running through seven years and upwards and ending in his incarceration.
Judgment reversed, and venire de novo awarded.