Commonwealth ex rel. Hood v. Vandyke
1868 Pa. LEXIS 58
Pa.
1868
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The opinion, of the court was delivered, by

Sharswood, J.

It may certainly be considered as settled by the case of Commonwealth v. Watmough, 6 Whart. 117, that in an action against the sheriff for a false return of nulla bona to a writ of fieri facias, unless it appears that the property pointed out by the plaintiff actually- belonged to the defendant in the execution, an offer to indemnify him will not make him liable in damages. This decision is not in the least shaken by Connelly v. Walker, 9 Wright 449; for although Woodward, C. J., in that case animadverted severely and justly on the conduct of the sheriff in making return to the writ that the property was claimed by certain persons who had given bond, which plainly was no legal return, yet it was not denied that the sheriff could show title in those persons, and the court proceeded to examine the questions arising upon that title. Nor does the Act of April 10th 1848, Pamph. L. 450, providing for an interpleader, vary the liabilities of the sheriff. That act is not imperative upon him, but affords him a means, by application to the court from which the execution issued, to relieve himself from responsibility. He may take the risk of returning nulla bona, or of proceeding to levy and sell, if he sees fit. In the case before us, the sheriff had before made a sale of the very goods, upon which he was directed to levy, on executions by other parties against the same defendants. We cannot enter into his motives in neglecting to avail himself of the provisions of the Interpleader Act, made for his protection and security. The question of the validity of the title of the purchasers at that first sale was fully gone into and decided on the trial' in this case. It was attacked as colorable, fraudulent and void as against creditors, and was left to the jury under instructions from the court, in which we can perceive no error. In regard to the coal lease, which was not levied on and did not pass by the sale, it was also fairly submitted to the jury to say whether it had not been surrendered to the landlord before the time when the executions were placed in the hands of the sheriff.

But there was another question in the cause, and another part of the charge under which the jury may have found their verdict,. even if they were of opinion that the sale was fraudulent, or that the purchasers were mere trustees for the original defendants. This arises under the answer of the court to the 2d point of the plaintiffs. They had tendered to the sheriff their bond of indemnity with sureties resident in the city of Philadelphia, of whose sufficiency evidence was given. The court said: “We think the sheriff should not be compelled to go to a remote part of the state to pursue the individuals in a bond of indemnity, but had a right to require that the bail should reside in the county.” Whether this answer was right is a question which arises directly and necessarily on this record. It is undisputed that wherever there is *39a claim of property adverse to that of the defendant in the execution, of that kind which would reasonably raise a doubt or apprehension as to the title, or create a pause in the mind of a constant man, the sheriff has a right to call on the plaintiff for a reasonable indemnity: Spangler v. The Commonwealth, 16 S. & E.. 68. If the plaintiff refuses to respond to this call, the sheriff may apply to the court to enlarge the time to make his return until such indemnity is given: Nagle v. Stroh, 4 Watts 124. The court to which such application is made would seem to be the proper tribunal to judge of the sufficiency of the indemnity, and that the proper time — not the jury long afterwards,, in an action against the sheriff for a false return. Indeed, I may be allowed to express for myself a doubt whether, in such action, the insufficiency of the indemnity offered is any defence. I cannot comprehend how it can justify a false return, though it may and no doubt does justify no return at all — but that is to be shown to the court in answer to a rule upon him to return his writ. The plaintiffs in error, however, raised no such question in the court below. They were willing and submitted to go to the jury upon the sufficiency of the indemnity. Were the court wrong in their answer to the plaintiff’s point? We are of opinion that they were not. The sheriff is an officer whose duty is not only to execute all writs and process, but he is also the principal conservator of the peace within his bailiwick. This function of his office demands his constant presence in the county. To require him, therefore, to go elsewhere to make the necessary inquiries as to the sufficiency of sureties, is to require him to neglect his other important duties to the public. It would be unsafe for him in many instances to act upon the ex parte evidence submitted to him by the plaintiff. He ought to have the opportunity of a free and impartial examination. It is no answer to say that he may delegate the business to others. In a matter which may involve him in very heavy loss, he has a right to be personally satisfied. There are many cases to which the principle will apply when he has no interpleader to resort to for his relief — as in replevin and property bonds. Besides which, if an action should afterwards have to be brought on the indemnity, it would become necessary for him to be absent from his office and duties frequently and for long periods — his witnesses must attend at a remote place — his cause must be tried before a jury of strangers — and all the inconveniences and perils attending a lawsuit at a distance from his home would have to be encountered. Whether it is in an adjoining or a distant county— in a sister state or a foreign country, can make no difference. Whether the indemnity tendered is reasonable ought not to be broadly submitted to the determination of a jury without instructions ; but like other questions of a similar character, is within the province of the court, leaving the facts, if in dispute, to the jury. *40On the whole, we see no error on this record of which the plaintiffs have any right to complain.

Judgment affirmed.