Whitney v. Moore , 3 Foster 1 ( 1875 )

Mr. Justice Paxson

delivered the opinion of the court,

The evidence referred to in the first assignment of error was erroneously admitted. The executions were issued some months after the feigned issue had been ordered, and under them the leasehold and fixtures of the colliery had been levied upon as the property of William D. Moore, the plaintiff in said issue. The landlord’s •warrant was still later in point of time, and was issued against John N. Bracken. Whether the property purchased by Whitney at the sale, was the identical property that had been levied upon under his two executions, was a question of fact which, even in the view taken by the court below of the effect of the constable’s sale and purchase of the property thereat by Whitney, should have been submitted to the jury. There was some evidence that all of the articles specified in the narr. were not sold at the constable’s sale. But the radical error was in the admission of the evidence for any purpose. It could throw no light upon the question of the ownership of the property at the time of the levy under the executions of Mr. Whitney. This was the single issue before the jury. The conduct of Mr. Whitney in purchasing the property at the constable’s sale, may or may not estop him from recovering hereafter upon the interpleader bond, in case of a verdict in his favor upon the feigned issue. This record raises no such question. For the present it is sufficient to say that the inquiry into what became of the property, months after the issue was ordered, was wholly irrelevant.

Judgment reversed, and a venire facias de novo awarded.