Myers v. Commonwealth , 2 Watts & Serg. 60 ( 1841 )

The opinion of the court was delivered by

Sergeant, J.

The first error assigned is, that the court erred in admitting in evidence the judgment obtained by Vm. Swetland & Co. against Powers & M’Kennan. The defendants contend that there is a variance between this judgment and the one between the same parties set out in the declaration. There is no ground for this allegation. The declaration states the judgment to be for the sum of $323.76, besides costs. The record offered sets out a judgment entered on a promissory note, dated 14th of April 1838, payable twenty-five days after date, for the sum of $320.68, on which is due and unpaid $73.76, with interest and costs of suit; and then in the calculation which follows, the debt is stated at $320.68, interest $3.08, making the judgment to be precisely the sum stated.

The second and third errors raise the question under what Act of Assembly the proceedings on this sheriff’s bond were to be had. For if they were under the Act of 28th of March 1803, then by the 4th section, the party aggrieved by the misconduct of the sheriff is to sue for the damage he has sustained, and the verdict and judgment are to be for that only. If the Act of the 14th of June 1836, relative to official bonds, applies in this case, then by section 8, the final judgment is to be, first, for the commonwealth in the amount of the obligation; second, for the plaintiff in the amount of damages assessed, and for the costs. It seems clear, however, that the latter Act does not apply; because, by the 6th section it is confined to bonds and obligations which shall be given, and therefore affects only bonds of officers made after that law' came into operation, which was the 1st of September 1836. The present bond was given on the 20th of October 1835, and is therefore, we think, not within the Act of the 14th of June 1836. The court therefore erred in entering judgment generally for the plaintiff. It should have been entered only for the amount of the damages assessed by the verdict of the j.ury, and costs of suit. This we may correct here by entering a proper judgment on the verdict.

The fourth error is, that the court erred in instructing the jury that the issuing the alias fieri facias did not release the sheriff, if he was liable when the fieri facias was returned. If the two remedies pursued by the plaintiff were not inconsistent with each other, he might adopt one without thereby relinquishing the other, unless he had obtained satisfaction. In Jackson v. Bartlett, (8 Johns. 361) it is held, that after an escape by the defendant from the custody of the sheriff on a ca. sa., the plaintiff may proceed against the sheriff for the escape, and at the same time take out a fieri facias against the property of the defendant; for the remedies are not inconsistent with each other. The mere taking out and proceeding on an alias fieri facias was no waiver of the sheriff’s responsibility ; it might, if successful, have been for the benefit of the sheriff, that the debt should be levied of the defendants’ goods. There is no repugnance between them, and the pursuit of one was not in itself a relinquishment of the other.

The fifth error suggests, that the sheriff’s liability was done away by the rule (or, as it is called, the injunction) of Judge Shoemaker, to show cause why the judgment should not be open.ed. But, it would seem, the neglect of duty complained of by the plaintiff, occurred four days before that order was issued, and the sheriff staid the execution in consequence of an agreement with him, on the part of the defendant, to call and settle the debt at a future day. This, the court properly say, fixed the sheriff for the debt, unless the plaintiff ratified the proceeding and in some way waived his liability.

Judgment reversed and judgment entered for plaintiff for 190.32, with interest from 7th of November 1840, with costs of suit below.