Girard Bank v. Philadelphia & Norristown Rail Road

2 Miles 447

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: January 2, 1841
• Status: Published

Opinion

Pee Curiam.—

The sheriff sold under all the writs, and the broad question is presented whether the execution creditor who gave the indemnity, by reason of so doing, has any preference over the others who gave no such indemnity. If the sheriff had sold specially under the writ of the Girard Bank, and had refused to execute the other writs on the ground that the plaintiffs named in them had refused to indemnify him, or for any other reason, and had so returned them, the Bank would have been entitled to the money. But even then, the sheriff would have been liable to the plaintiffs who did not indemnify, if it turned out that the property was in law liable to their executions, as the property of the defendants. The sheriff might have required, under our practice, a suspension of their writs, until he was indemnified by them. But he has proceeded on all of them. No effort had been made to show that the property did not belong to the defendants; and if it had, it would have been immaterial, for we do not inquire into the title to the property on a question of distribution in such a case. It is impossible to see how the giving of the indemnity, gives to a plaintiff any better right to the proceeds, as against prior liens, than if none had been given. If the chattels are sold as the property of the defendants, the prior lien takes the fund, unless it has been waived in law or in fact, which was not the case here.

Exceptions dismissed.