Hill v. Grant

The opinion 'of the court was delivered, by

Thompson, J.

No authority was cited for the position of the .plaintiff in error, that the return of the sheriff on the plaintiff’s execution was not evidence, in a suit on the interpleader bond, when offered by'the defendant. It would not, of course, be evidence of matters extrinsic to a proper return; but it is undoubtedly evidence of the seizure of the property, out of which the inter-pleader has arisen; and if it go further, and show a sale of the same property afterwards, and money made, why is it not evidence ? It was the plaintiff’s own process, and it was not only evidence against him, but such as he could not gainsay. We have said this in Paxson’s Appeal, just decided. It was not new there. The execution, in such cases, is suspended in its active operations, while the interpleader issue is pending; but when that is determined, if in favour of the execution-creditor, the sheriff may proceed to sell, and make his return to the writ. That is what wás done here, and the return shows a sale of the very property seized, which, for a time, had been tied up by the interpleader. It shows that, in accordance with the bond, it was forthcoming, and the plaintiff had had the benefit of it. It was very important evidence therefore for the defendant, when the plaintiff, after having had the benefit of it as a levy, and having sold it as such, was endeavouring to recover as if he had not had that benefit. It is hardly necessary to say there was no error in receiving such testimony.

The executions in other cases, levied on the same property and given in evidence by the defendants, were, so far as I can see, without effect, either for or against either of the parties. The purpose of such evidence is not perceptible; but, as it does not appear to have had any deleterious effect in its irrelevancy, we will not reverse because it was but irrelevant.

Strangely enough, the plaintiff attempted to contradict the levy endorsed on his own writ, of the property described in the bond in suit. He was not permitted to do this, because it was conclusive on him, in the collateral form in which it was attempted to be attacked. But if the evidence could properly have been received, it seems to me it would have been felo de se of the plaintiff’s case. If he could have shown that he had no levy, what right had he to claim the property on the writ ? But, without speculating as to the occult purpose of it, we need only say there was no error in refusing the offer.

To the claim on the bond, the defendant plead payment, and relied on the sheriff’s return of sold, as to the property described in the bond. This directly met the alleged breach, that the property was not forthcoming to answer the writ. But it seems to have been thought that, as both the interpleader issues had not been determined when the property was sold, it could not in law have been forthcoming in anticipation of that result. What had the plaintiff to do with that ? It was forthcoming on his writ, and he had the tangible evidence of it, as shown by the return on the writ, and by receiving the proceeds of it. But even if it had been surrendered to the sheriff before either of the interpleader issues were determined, and sold by him, that would be an equitable defence. Payment before the day mentioned in a bond is a good equitable defence; and why not a defence when a condition is performed in advance of the stipulated time, and when performance is accepted ? It cannot be doubted that the defence was proper. The plaintiff can, in no way that I can conceive of, avail himself of the fruits of the property, and also recover, as if he had lost that- advantage. This would be double satisfaction. We think no error occurred on the trial in any part of the case, and the judgment is

Affirmed.