57 Pa. 34 | Pa. | 1868
The opinion, of the court was delivered, by
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
Judgment affirmed.