30 Pa. 49 | Pa. | 1858
The opinion of the court was delivered by
who, after stating the facts of the case, continued as follows:—
Undoubtedly the sheriff was in default, and the plaintiffs were therefore entitled to a verdict. But for how much ? The learned judge of the District Court instructed the jury that if they believed the goods sold were the same levied upon, the damages ought to be nominal. In this we perceive no error. Clearly, if the same goods were sold which the sheriff had seized in December 1853, as the jury have founds then Knight & Co. have sustained no injury for which the sheriff is responsible. The delay caused by the interpleader is not attributable to him. So far, therefore, as the plaintiffs’ declaration complains of failure to sell the goods levied upon, the verdict negatives the charge, and the sheriff was not responsible even in nominal damages. It is argued, however, that the plaintiffs were entitled to recover at least $33.33, the sum for which the goods were sold in April 1855. If the breach of duty averred in the declaration had been non-payment of money made under the jft. fa., the argument might be sound, but there is no such breach assigned. The sheriff is impleaded for not having sold that upon which he had levied, and for not having returned his writ. In this case he is answerable only for the damages which Knight & Co. have sustained in consequence of his default in these two particulars.
It is also assigned for error, that the court below instructed the jury that the lease for life could not be sold under the jft. fa. It was a lease per autre vie, a freehold not of inheritance. Though it does not appear in the bill of exceptions, yet it is said Sharp did not claim ownership of the lease, and that the interpleader was not to try his right to it. Assuming the fact to be thus, did the court err in ruling that the sheriff could not sell it under the fi.fa. ? We think not. Prior to the 24th of January 1849, there was a statutory prohibition of the sale of estates for life under any execution ; and although since that time they may be sold, yet the sales must be made in the manner provided by law in the case of estates of inheritance, and only under a venditioni exponas. Until the return day of that writ, any lien creditor has a right to the appointment of a sequestrator: Act of Jan. 24,1849, §§ 3 and 4, P. L. 676. Nor can the writ of venditioni exponas issue, unless by the direction of the court, and after notice to the tenant for life. It is no answer to this, that if the sheriff could not sell it was his duty to have an inquisition found. He is not sued for neglect to do that, nor did the court below instruct the jury upon that subject.
The only remaining error assigned is the admission of George K. Wise as a witness for. the defendants. He was not the deputy of the sheriff, but a person employed by the sheriff’s deputy. If, therefore, there was any liability on his part to the sheriff, it was dependent upon a double contingency. It was quite too remote
Judgment affirmed.
