Berwald v. Ray

165 Pa. 192 | Pa. | 1895

Opinion by

Mr. Justice Fell,

This action was against the sheriff for selling the goods of the plaintiff under an execution against another person. The learned judge directed a verdict for the defendant, and this is the error assigned. L. & C. Wise caused an attachment under the act of March 17, 1869, to issue against R. Berwald and B. Berwald under which certain goods contained in a store conducted in the name of B. Berwald and claimed by him as his property were seized. A rule to dissolve the attachment was discharged, and a rule for judgment for want of a sufficient affidavit of defence was made absolute as to a part of the claim against R. Berwald and discharged as to B. Berwald, the plaintiff here. Execution was issued upon the judgment against R. Berwald and the goods attached were levied upon. B. Berwald notified the sheriff that the goods were his, but the sheriff, on being indemnified by the plaintiff in the attachment, sold them. The attachment proceedings were subsequently discontinued, no judgment having been obtained against B. Berwald. The reason assigned by the court for the peremptory instruction to find for the defendant was that the plaintiff’s only remedy was by action on- the bond given when the attachment issued.

An action may be maintained on a bond given in an attachment proceeding under the Act of March 17,1869, as amended by the act of May 24, 1887, where there has been a failure to prosecute the attachment with effect, or if the attachment has been quashed, dissolved or ended ; and recovery in such action is limited to legal costs, fees and damages sustained by reason of the attachment. It is a statutory bond, and liability under it cannot be extended beyond its terms. The damages which may be recovered are such as are the natural and usual result of the seizure of goods, as loss of sales and interruption of business, but not such as are indirect or. consequential, or punitive: Commonwealth ex rel. Cord v. Magnolia Land and Imp. Co., 163 Pa. 99. The sale of the plaintiff’s goods was not the result of an attachment against him, but of a judgment and execution against another. It was not in violation of the condition of the bond, but of his rights entirely irrespective of the bond. An action on the bond could be maintained only for a breach of its condition, and any recovery would be limited to loss resulting from the seizure of the goods. For the unlawful sale of the property his remedy was in trespass, and on the issue raised it was his right to go to the jury.

The assignment of error is sustained and the judgment reversed with a venire facias de novo.