Flick v. Troxsell , 7 Watts & Serg. 65 ( 1844 )

The opinion of the Court -was delivered by

Rogers, J.

That the return of the sheriff is conclusive, is one of those elementary principles which cannot be gainsaid or denied. Was, then, the evidence rejected by the court in opposition to the sheriff’s return ? The sheriff had two executions in his hands, one issued the 21st September 1842, the other the 26th October 1842. The latter he returned levied subject to a prior levy, the former levied as per inventory and sold for $508.23. The legal effect of the return is, levied and sold and money made on the first etecution; so that nothing can be clearer than that the first execution creditor, without more, is entitled to the proceeds of the sale. In truth, nothing has been done on the junior execution, except a levy subject to the first execution. Under these circumstances, the offer is made as is contained in the first bill of exceptions, the operation of which will be to alter and vary the sheriff’s return. But that this cannot be done is ruled in Mentz v. Hamman, (5 Whart. 151). If the facts are as stated, the sheriff has made a false return, and is answerable for the debt to the second execution creditor; for it was his duty to make the sale on the second execution and so to return it, inasmuch as by the conduct of the first execution creditor, of which he was cognizant, he was postponed to the second. The offer to prove these facts by the sheriff himself is an attempt to avoid the effect of his return, and to exonerate himself from the consequences of his own act. Mentz v. Hamman, (5 Whart. 151). The court were right in rejecting the evidence in the first bill. •

Then as to the second bill. The defendant offered to call witnesses to prove an arrangement made by the plaintiff Troxsell with the defendant Strickland, and other conduct of the plaintiff evincing his intention not to have a sale of the property levied on. If this be true, as is held in Weir v. Hale, (3 Watts & Serg. 285), the first execution is postponed. The question is, whether the evidence contradicts the return so as to bring it within the principle ruled in Mentz v. Hamman. But in what respect does it falsify the return? The return is true, notwithstanding the private arrangement of the plaintiff and defendant, to which the sheriff was not privy. He is not answerable either to the first or second execution creditor, as in the first bill; for it is a matter dehors the return, resting between the parties, the legal effect of which is, as between them, to give the second execution creditor a right to the money. If the money was in the hands of the sheriff) he would be a stakeholder, and on notice would have the right to require an indemnity before he could pay over the money either on the first or second execution. But here the money is brought into court and ah issue directed to try the right; and we think it competent to the court, notwithstanding the return, to investigate the facts and adjudge the money to the creditor legally entitled. Unless this can be done, there is an acknowledged wrong without a remedy. The parties to the suit are the respective creditors in the first and second execution; and although the sheriff’s return is prima facie evidence in favour of the first, yet the second is not estopped from showing the truth by matter collateral to the return, viz., that the first execution creditor postponed his right in favour of the second. And this can only be done by the introduction of parol testimony such as is contained in the second bill.

Judgment reversed, and a venire de novo awarded.