The opinion of the Court was delivered, by
Black, C. J.
This suit was brought by Irwin on the official bond of the sheriff of Mifflin county, against the sheriff and his sureties. It appeared, that a testatum, fieri facias, to the sheriff of Mifflin, had issued out of the District Court of Philadelphia, against Francis A. Whitaker, at the suit of Ellis P. Irwin, for $2160.85. By virtue of this writ the sheriff, on the 14th of June, 1849, levied on the personal goods of Whitaker. The goods thus levied were claimed by John F. Cottrell, as his property. Agreeably to the Act of 10th April, 1848 {Pamph. 450), the District Court made a rule on Cottrell to maintain or relinquish his claim. This proceeding resulted in an order on the parties (Cottrell and Irwin) to form an issue for the trial of the title to the goods, and a direction to the sheriff to withdraw from the possession of them, when Cottrell should file his declaration in the issue, and a bond with approved security for the forthcoming of the property, in case the issue should be determined in favor of Irwin. The sheriff, immediately upon this, and without waiting for the bond to be, filed, relinquished his possession of the goods, and so returned the writ. The bond was never filed, nor the issue proceeded in. Soon after-wards, Whitaker confessed judgment, in the Common Pleas of Mifflin, to one Righter, who issued execution, and under his writ [444]*444the same goods were levied. Cottrell then, instead of claiming title to the property, gave notice to the sheriff, that the defendant Whitaker was his tenant and owed him a year’s rent, amounting to $3500, of which he demanded payment out of the proceeds of the sale. The goods were sold to Righter, the plaintiff .in the execution, for $2100, a price, which the evidence affords some reason to believe, was much below their real value. At the instance of the sheriff, an auditor was appointed to make distribution. He awarded the whole fund, after deducting costs, to Cottrell on his claim for rent, and the Court confirmed his report.
There can be no doubt that the sheriff, in withdrawing from the possession of the property, before any bond was given, or declaration filed, and in refusing to go forward with the sale under Irwin’s execution, acted without warrant or authority of law, and contrary to his plain duty. It was a voluntary and illegal surrender of his hold upon the goods, which, in justice to the plaintiff, he was bound to retain. The proceeding in the District Court no more authorized him to give up the goods, under those circumstances, than if such a proceeding had never been commenced. Nor do we think there is the slightest evidence from which a jury could possibly infer that his conduct was authorized by the plaintiff or his attorney. Mr. Wollaston, the only witness called who knows anything of the matter, swears that he did not direct the writing of Mr. Porter’s letter. Another witness testifies to Wollaston’s declaration that he had authorized it. But this was hearsay; and though it might tend to weaken the credibility of Wollaston’s oath, it does not establish affirmatively the fact which that oath denied. It does not alter the ease to say that this was the declaration of the plaintiff’s agent. The mere assertion of a fact cannot amount to proof, though it may have some relation to a business in which the person making it was employed as agent. If any fact, material to the interest of a party, rest in the knowledge of an agent, it is to be proved by his testimony, not by his mere statement without oath (10 Ves. 123). In every view of the case, we must take it that the sheriff gave up these goods upon his own responsibility.
. It is insisted, however, that the execution still kept its lien on the goods, and the plaintiff might have gone before the auditor and into Court, claiming the proceeds, which not having done, his right of action against the sheriff is gone. We cannot assent to this. Admitting the lien of the plaintiff on the money to have been in full force at the time it was distributed, what authority had the sheriff to remit him to a remedy which he did not choose to adopt for himself? Having placed his writ in the hands of the proper officer, it was his right to have it executed; and when the sheriff wrongfully refused to do his duty, action accrued to the plaintiff to recover it from the sheriff. He had the sheriff and his [445]*445sureties liable, and was bound to look no further. Supposing no other execution had intervened, and the goods had still remained unencumbered in the hands of the defendant, would that have been a defence to the defaulting officer ? Or if his judgment had been a lien on land, could he have insisted upon the plaintiff looking to it before demanding satisfaction from him ? Whether the decree of distribution was right or wrong, therefore, it was no defence to the sheriff in this action.
But even if this were otherwise, it would make no difference; for we are of opinion that the lien of the execution was wholly gone, and that Irwin had no claim whatever to the fund raised by the sale under Righter’s writ; and the loss of the lien having resulted from the sheriff’s non-performance of his duty, the plaintiff’s right to recover would be a clear one, even if it were true that the decree of distribution concluded him, as to all that he might have been able to get by pressing his claim before the auditor. Irwin had no right to the fund at the time of the distribution, because the sheriff had previously destroyed his right to it, and because his only remedy was an action against the sheriff for the wrong which produced that effect. The law having said that he should not receive satisfaction out of the fund because the sheriff was liable, would be reasoning in a vicious circle if it would add that the sheriff was not liable because the creditor did not get satisfaction out of the fund.
A sheriff may levy on goods, and the lien of the execution is not lost, merely because the goods are left in the possession of the defendant. This doctrine is, in some degree, peculiar to Pennsylvania. Its existence has been regretted by this Court (8 Ser. & R. 510,) and it has been totally repudiated by the Circuit Court of the United States for this district (1 Wash. C. C. R. 29). It has been narrowed of late years (3 R. 345), and is growing nar-' rower still. Judicial authority, indeed, cannot abolish it; we can only say that we will not extend it. But allowing the rule to be well founded on principle, and giving to it the weight which is due to it in that aspect, it does not follow that the lien remains in a case like this. There is a very wide and manifest difference between mere forbearance on the part of the sheriff to take the goods into his custody, and an express and formal surrender of them to the defendant, put into writing, incorporated in the return, and placed on the record. Not to take them is one thing, and to redeliver them after they are taken, is another and a quite different thing. Such an act can only mean that the sheriff' has determined not to hold them, or sell them under the execution, but to let the defendant do with them what he will. So I think it has always been held. “I am not aware,” says Lord Ellenborough in Rhodes v. Orundale, 1 Maule & Selwyn 711, “ of any case where, upon an abandonment of possession by the sheriff, the goods have [446]*446still been holden to remain in the custody of the law.” And in Achland v. Paynter, 8 Price 95,
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The opinion of the Court was delivered, by
Black, C. J.
This suit was brought by Irwin on the official bond of the sheriff of Mifflin county, against the sheriff and his sureties. It appeared, that a testatum, fieri facias, to the sheriff of Mifflin, had issued out of the District Court of Philadelphia, against Francis A. Whitaker, at the suit of Ellis P. Irwin, for $2160.85. By virtue of this writ the sheriff, on the 14th of June, 1849, levied on the personal goods of Whitaker. The goods thus levied were claimed by John F. Cottrell, as his property. Agreeably to the Act of 10th April, 1848 {Pamph. 450), the District Court made a rule on Cottrell to maintain or relinquish his claim. This proceeding resulted in an order on the parties (Cottrell and Irwin) to form an issue for the trial of the title to the goods, and a direction to the sheriff to withdraw from the possession of them, when Cottrell should file his declaration in the issue, and a bond with approved security for the forthcoming of the property, in case the issue should be determined in favor of Irwin. The sheriff, immediately upon this, and without waiting for the bond to be, filed, relinquished his possession of the goods, and so returned the writ. The bond was never filed, nor the issue proceeded in. Soon after-wards, Whitaker confessed judgment, in the Common Pleas of Mifflin, to one Righter, who issued execution, and under his writ [444]*444the same goods were levied. Cottrell then, instead of claiming title to the property, gave notice to the sheriff, that the defendant Whitaker was his tenant and owed him a year’s rent, amounting to $3500, of which he demanded payment out of the proceeds of the sale. The goods were sold to Righter, the plaintiff .in the execution, for $2100, a price, which the evidence affords some reason to believe, was much below their real value. At the instance of the sheriff, an auditor was appointed to make distribution. He awarded the whole fund, after deducting costs, to Cottrell on his claim for rent, and the Court confirmed his report.
There can be no doubt that the sheriff, in withdrawing from the possession of the property, before any bond was given, or declaration filed, and in refusing to go forward with the sale under Irwin’s execution, acted without warrant or authority of law, and contrary to his plain duty. It was a voluntary and illegal surrender of his hold upon the goods, which, in justice to the plaintiff, he was bound to retain. The proceeding in the District Court no more authorized him to give up the goods, under those circumstances, than if such a proceeding had never been commenced. Nor do we think there is the slightest evidence from which a jury could possibly infer that his conduct was authorized by the plaintiff or his attorney. Mr. Wollaston, the only witness called who knows anything of the matter, swears that he did not direct the writing of Mr. Porter’s letter. Another witness testifies to Wollaston’s declaration that he had authorized it. But this was hearsay; and though it might tend to weaken the credibility of Wollaston’s oath, it does not establish affirmatively the fact which that oath denied. It does not alter the ease to say that this was the declaration of the plaintiff’s agent. The mere assertion of a fact cannot amount to proof, though it may have some relation to a business in which the person making it was employed as agent. If any fact, material to the interest of a party, rest in the knowledge of an agent, it is to be proved by his testimony, not by his mere statement without oath (10 Ves. 123). In every view of the case, we must take it that the sheriff gave up these goods upon his own responsibility.
. It is insisted, however, that the execution still kept its lien on the goods, and the plaintiff might have gone before the auditor and into Court, claiming the proceeds, which not having done, his right of action against the sheriff is gone. We cannot assent to this. Admitting the lien of the plaintiff on the money to have been in full force at the time it was distributed, what authority had the sheriff to remit him to a remedy which he did not choose to adopt for himself? Having placed his writ in the hands of the proper officer, it was his right to have it executed; and when the sheriff wrongfully refused to do his duty, action accrued to the plaintiff to recover it from the sheriff. He had the sheriff and his [445]*445sureties liable, and was bound to look no further. Supposing no other execution had intervened, and the goods had still remained unencumbered in the hands of the defendant, would that have been a defence to the defaulting officer ? Or if his judgment had been a lien on land, could he have insisted upon the plaintiff looking to it before demanding satisfaction from him ? Whether the decree of distribution was right or wrong, therefore, it was no defence to the sheriff in this action.
But even if this were otherwise, it would make no difference; for we are of opinion that the lien of the execution was wholly gone, and that Irwin had no claim whatever to the fund raised by the sale under Righter’s writ; and the loss of the lien having resulted from the sheriff’s non-performance of his duty, the plaintiff’s right to recover would be a clear one, even if it were true that the decree of distribution concluded him, as to all that he might have been able to get by pressing his claim before the auditor. Irwin had no right to the fund at the time of the distribution, because the sheriff had previously destroyed his right to it, and because his only remedy was an action against the sheriff for the wrong which produced that effect. The law having said that he should not receive satisfaction out of the fund because the sheriff was liable, would be reasoning in a vicious circle if it would add that the sheriff was not liable because the creditor did not get satisfaction out of the fund.
A sheriff may levy on goods, and the lien of the execution is not lost, merely because the goods are left in the possession of the defendant. This doctrine is, in some degree, peculiar to Pennsylvania. Its existence has been regretted by this Court (8 Ser. & R. 510,) and it has been totally repudiated by the Circuit Court of the United States for this district (1 Wash. C. C. R. 29). It has been narrowed of late years (3 R. 345), and is growing nar-' rower still. Judicial authority, indeed, cannot abolish it; we can only say that we will not extend it. But allowing the rule to be well founded on principle, and giving to it the weight which is due to it in that aspect, it does not follow that the lien remains in a case like this. There is a very wide and manifest difference between mere forbearance on the part of the sheriff to take the goods into his custody, and an express and formal surrender of them to the defendant, put into writing, incorporated in the return, and placed on the record. Not to take them is one thing, and to redeliver them after they are taken, is another and a quite different thing. Such an act can only mean that the sheriff' has determined not to hold them, or sell them under the execution, but to let the defendant do with them what he will. So I think it has always been held. “I am not aware,” says Lord Ellenborough in Rhodes v. Orundale, 1 Maule & Selwyn 711, “ of any case where, upon an abandonment of possession by the sheriff, the goods have [446]*446still been holden to remain in the custody of the law.” And in Achland v. Paynter, 8 Price 95, all the barons of the Exchequer held, that an abandonment of possession, after levy and seizure, left the goods open to be taken by another creditor. These authorities are not only to the very point, but entitled to great weight; for, although our law differs from that of England, in suffering the execution to retain its lien Avhere the sheriff has forborne to remove the property, we have never decided that he incurs less responsibility here than elsewhere, if he abandons his possession or expressly declares his determination not to proceed. The lien of an execution results from the right to levy. If the return-day is suffered to come and go without a levy, the lien is lost. Where the levy, though actually made, is not returned, there is no lien; and this whether the non-return was caused by the order of the plaintiff, or by the unauthorized act of the sheriff: 7 W. & Ser. 134. Where the sheriff returns that he took the goods of the defendant in execution, and afterwards withdrew from the possession of them, the legal effect of the whole return is, that there is at the time of the return no existing levy at all.
Neither does it seem to us that the principle of this cáse can be likened to that of Sedgwick’s Appeal, 7 W. & Ser. 260. The lien was retained in that case, because the property Avas in the custody of the laAV, placed there by the operation of a statute, and neither the sheriff nor the plaintiff was in any default. After what I have already said, it cannot be necessary to add, that there are no such reasons here. If the order of the District Court had been strictly complied with, first by Cottrell and afterwards by the sheriff, the question, whether the lien of the execution remained, might not even then have been free from doubt. There are points of difference, as well as points of resemblance, betAveen the stay laAV and the Act of 1848, which will require consideration before that matter is settled.
The point next to be considered regards the extent of the sheriff’s liability. Primd facie, he is responsible for the whole amount of the sum endorsed on the execution (10 Mass. R. 474). But he may reduce it by showing that no diligence of his could have collected so much (1 Hill 276). If, therefore, the value of the property was less than the debt, the plaintiff can only recover as much as it was worth. It is also true, upon the same principle, that if the goods were encumbered by a prior lien, which would have absorbed a portion of the proceeds in case a sale had been made at the proper time, the amount of such lien must be deducted from the value. What the sheriff could have made for the plaintiff, by a proper discharge of his duty, is the just and reasonable, as well as the legal, standard of his liability. In estimating the value of the property, the price it Avould have brought at a fair sale, under the direction of the plaintiff, Ayho was interested in [447]*447bringing it up to a certain point, is to be looked to. .What it did actually sell for, is no more than a circumstance.
This brings us to the question, whether there were any liens on the goods prior or superior to that of the plaintiff’s execution. None is pretended, except that for rent, due to Cottrell. This, however, it may safely be presumed from all the circumstances, would have been enforced to the extent of the landlord’s legal rights. It was reserved by a lease of the furnace and of personal property, consisting of a store, teams, &c. Now a sum of money, payable periodically, for the use of chattels, is not rent in any legal sense of the word. It cannot be distrained for; and unless it can, it is not demandable out of the proceeds of a sheriff’s sale; for this right comes in place of a distress by the plain words of the statute. Rent must not only issue out of land, but it must be fixed, definite, and certain in amount, whether payable in money, chattels, or labor. If, therefore, a lease so mixes the real and personal property together that it cannot be determined how much of what is called the rent is to be paid for the chattels, and how much is the profit of land, there can be no distress for non-payment of it. This lease stipulates for a rent of §3500 on real and personal property both. But they may be separated. There is a provision in it that when the tenant buys and pays for the personal property, the rent shall be abated to $2500. From this we may infer that the rent was $2500 for the furnace, and $1000 for the goods. It requires a very liberal construction to make this out in favor of the lessor. But, after careful consideration and some doubt, we are all of opinion that we may take it from the language of the lease, without violating either the natural probabilities of the case or any received rule of interpretation.
We are next to inquire how much rent was due on the land when the levy was made; and'we think, plainly not more than twelve hundred and fifty dollars. Though the lease is said to be for five years, counting from the 1st of April, 1848, this was to limit the length of the term, and to fix the end of it, not the beginning. The estate of the lessee could not actually commence until ■the lease was made. He was to pay the rent half yearly in advance. The first half year’s rent was paid, the third was not due until the 27th of June, 1849, and the second half yearly payment was all that was demandable on the 14th of June, when the goods were taken in execution.
The plaintiff was entitled to recover the amount of his claim if the property levied on was worth so much and $1250 more; and if worth less, he had a.right to a verdict for the fair value above the claim for rent, unless there was something in the evidence which rendered it unworthy of belief; and the Court might properly have said so to the jury. It is unnecessary to say upon which or how many of the errors assigned we ground our judg[448]*448ment of reversal. Our opinion on all of them may be gathered from what has been said.
Judgment reversed, and venire facias de novo awarded.