| Pa. | Oct 19, 1885
delivered the opinion of the court October 19th, 1885.
Complaint is made in the first specification of error .that the learned judge did not submit to the jury the question whethér Gilmore,- the landlord, had served a notice of his claim for rent upon the sheriff or his deputies.
As all the evidence in regard to the notice appears of record, it was not error in the court to pass upon its sufficiency. The court deemed it sufficient and gave a binding instruction. If
The record evidence consisted of the sheriff’s return to the writ of fieri facias and the paper attached to said writ. The return sets out a levy on August 5th, 1879, on the personal property of John F. Thomas, and that the same property remained in his (the sheriff’s) hands unsold for want of buyers, with a schedule thereof. ■
It does not appear when this return was made. Attached to the writ was a notice from Gilmore, the landlord, to the sheriff, that he claimed one year’s rent, six hundred dollars, out of the proceeds of the sale of the personal property. The notice is dated Sept. 2d, 1879. There was no oral testimony to show when or bjr whom the notice was attached, to the return, and the return itself makes no mention of the paper. What is the presumption arising from the face of the papers? Is it that the notice was duly served on the sheriff or his deputy?
We think it makes out a prima facie case of notice. Of course there is a possibility of the notice having been attached to the writ surreptitiously by some one other than the sheriff. But this is a matter of defence on the part of the sheriff. The law makes no such presumption. The paper is addressed to the sheriff, and is attached to his return. This is sufficient evidence, in the absence of all opposing proof, to show the receipt of the notice by the sheriff.
The second assignment alleges that the court erred in entering judgment for the plaintiff on the verdict on the reserved question. The reserved question was whether, under the facts as presented by the record, there can be any recovery. We see no error in the ruling upon this point. The record shows the receipt of the notice before the return of the writ. The precise time of the return is not therefore of much importance. In the absence of all proof there is no presumption that it was returned before the return da3r, which it was conceded was on the 25th of August. The record also shows that a venditioni exponas was subsequenth1, issued to sell the property levied upon-under the fieri facias, and the following return to said writ: “ November 10th, 1879. After $220 paid to plaintiff the writ was stayed by order of the plaintiff.” It thus appears the sheriff paid no attention to the landlord’s claim, but collected a portion of the money, paid it over to the plaintiff in the execution and returned the writ st.a3red. Whether this was the result of ignorance or design is not material, as the effect upon the rights of the landlord is the same. The sheriff had notice of the landlord’s claim and he disregarded it at his
Since the passage of the Act of 16th June, 1836 — see section 85, P. L., 777 — a sheriff who returns an execution stayed, after a levy on personal property, and notice of a claim of rent from the landlord of the defendant in such execution, does so at his own risk, unless he has the consent in writing of the landlord. The act prohibits the plaintiff from staying a writ under such circumstances without such consent. This is the compensation which the law gives the landlord whose right of distress is interfered with by the levy.
Judgment affirmed.