EXECUTION. P. L. 235. ant's interest in a interest (m) which any person or persons may have in real or personal estate of any 13 April 1843 § 10. 66 P. L. 620. as defendant's 52. The 10th section of the act of 13th April, Anno Domini 1843, (u) entitled 10 April 1849 § 11. "An act to convey certain real estate, and for other purposes" (providing that all legacies given and lands devised to any person or persons, and any interest which Such attachment any person or persons may have in the real or personal estate of any decedent by may issue, as soon will or otherwise, which are subject to foreign attachment by the act of the 27th interest accrues. An act to enable creditors to attach of July, Anno Domini 1842, (v) entitled legacies and property in the hands of executors and administrators, and for other purposes;" shall be subject to be attached and levied upon in satisfaction of any judgment, in the same manner as debts due are made subject to execution by the 22d section of the act of 16th June, Anno Domini 1836, (w).entitled "An act relative to executions "), shall be deemed to authorize the issuing and service of process in the nature of attachment, at any time after the interest which any per son or persons may have in the real or personal estate of any decedent, shall have accrued by reason of the death of such decedent:(x) Provided, That a sale of the When defendant's aforesaid interest of the defendant in the proceeding by attachment, authorized by sold. the aforesaid 10th section of (the act of) 13th April, Anno Domini 1843. shall not be compelled by any process of execution, until a year shall have elapsed from the In all cases Executors, &c., to time when the interest aforesaid vested in the defendant, unless the executors or administrators of the decedent shall have sooner filed their account. when executors, administrators or trustees of the estate of decedents shall have be allowed their been made garnishees in the process in the nature of attachment authorized by costs and exthe 10th section of the act of 13th April, Anno Domini 1843, entitled "An act to convey certain real estate, and for other purposes," they shall be entitled to their costs, as well as the expenses necessarily incurred by them in attending to the proceeding in which they may have been garnishees.(y) interest may be penses. P. L. 37. 53. Where moneys or other estate of a decedent have been or shall be attached 28 Feb. 1878 § 1. in the hands of executors or administrators, the garnishee may, after the third terin, apply by petition to the court out of which the attachment issued, asking Executors, when rule the plaintiff the court to grant a rule on the plaintiff and defendant to appear and show cause garnishees, may why the attachment shall not be proceeded in, within such time as the court may to proceed. order and direct; and upon hearing had, it shall be lawful for the court, upon neglect or refusal of the plaintiff to proceed as required, to make an order on the record, discharging the garnishee and the property in his hands from all liability tachment at the suit of a creditor of A. B. Park v. Matthews, 36 P. S. 28. And see Girard Life Insurance Co. v. Chambers, 46 Ibid. 485. Keyser v. Mitchell, 67 Ibid. 473. 1 T. & H. Pr. § 1007. Where a legatee is also executor, his judgment-creditor may issue an attachment-execution against him as defendant and summon him as executor, as garnishee. Fagan's Estate, 34 W. N. C. 66. (m) See Fenton v. Fisher, 106 P. S. 418. Bank of (n) See Ross v. Cowden, 7 W. & S. 376. Chester v. Ralston, 7 P. S. 482. Brady v. Grant, 11 Ibid. 361. Baldy v. Brady, 15 Ibid. 103. Straley's Appeal, 43 Ibid. 89. This act Foreign Attachment." (0) See tit. contains a proviso, that its provisions "shall not extend to legacies and distributive shares of married which are likewise protected by act 11 April women; 1848; see tit. "Marriage." (p) In whose hands or possession soever the same may be as the executor's agent, who has received the defendant's share of the proceeds of real estate. Gochenaur's Executors v. Hostetter, 18 P. S. 414. (9) Supra 44. This act (r) See tit. "Foreign Attachment." provides, that a bond shall be given, with suffieient security, to be approved by the court, in double the amount to be received from such garnishee, with like conditions as are prescribed in the 41st section of the act 21 February 1834, to wit: "that if any debt or demand shall afterwards be recovered against the estate of the decedent, or otherwise be duly made to appear, he will refund the ratable part of such debt or demand, and of the costs and charges attend ing the recovery of the same." See tit. "Dece (s) An executor cannot be made a garnishee in respect of a debt owing by his testatum; the act does not apply to such a case. Reisky v. Clayton, 2 Phila. McCoombe v. 101. Williamson v. Beck, 8 Ibid. 269. Ibid. 97. Dunch, 2 Dall. 73. Pringle v. Black's Executors, (t) The attachment of a legacy, in the hands of an executor, transfers the right to receive it, subject to the rights of the garnishee. If the legatee be indebted to the estate, to an amount exceeding the legacy, such indebtedness may be set off against the Strong's Executor v. Bass, 35 attaching-creditor. Haines, 18 Ibid. 114. And see Brady v. P. S. 333. (e) See tit. "Foreign Attachment." (u) Supra 51. (w) Supra 44. (x) legacy or distributive share may be attached. Gochenaur's before any settlement of the estate. Executors v. Hostetter, 18 P. S. 414. Chambers v. And judgment may be had, if Baugh, 26 Ibid. 105. the administrators have ample funds in their hands to pay the legacy, after discharging all debts of the estate. Lorenz's Administrators v. King, 38 P. S. 93. But such attachment does not bind the defendant's interest in the real estate descended. Roth's Appeal, 94 Ibid. 186. (y) Where executors are garnishees, it is error to de bonis propriis. enter judgment against them See Layman v. Beam, 6 Lorenz's Administrators v. King, 38 P. S. 93. Maurer v. Kerper, 102 P. S. 444. Wh. 186, as to the judgment in attachment cases. P. L. 37. 20 March 1845 § 4. P. L. 189. Attachments in execution may issue against corporations. 28 Feb. 1873 § 1. for such debt or demand; Provided, That this act shall not apply where the property sought to be attached shall not be yet due and payable by the garnishee. 54. So much of the act of assembly passed 16th day of June 1836, (2) entitled "An act relating to execution," as provides for the levy and recovery of stock, deposits and debts due to defendants by process of attachment and scire facias, is hereby extended to all cases of attachments to be issued upon judgments against corporations (other than municipal corporations):(a) and from and after the passage of this act all such process, which hereafter may be issued, may be proceeded in to final judgment and execution, in the same manner and under the same rules and regulations as are directed against corporations, by the provisions of the act of 16th June 1836, (b) relating to executions. And that so much of the 36th section of the act of 16th June 1836, (c) as requires service of the attachment on any defendant, be and the same is hereby repealed, except where the defendant is a resident of the county in which the attachment issued. (d) Service on defend ant dispensed with, where he is a non resident. 29 March 1919 § 2. 7 Sm. 217. 55. The stock of any body corporate owned by any individual or individuals, body or bodies politic or corporate, in his, her, its or their own name or names, Stock held by de- shall be liable to be taken in execution and sold, in the same manner that goods and chattels are liable in law to be so taken and sold, subject, nevertheless, to any debt due by the holder or holders of such stock to the company or body corporate.(e) fendants in their own names may be sold under fi. fa. Ibid. § 3. Stock held in the name of another may be attached before judgment. 56. And whereas, it sometimes happens, that the stock of such bodies corporate is held in another name or names than that or those of the real owner or owners thereof, and it is just that stock so held should be made liable for the debts of the real owner or owners: Therefore, whenever any plaintiff or creditor shall file an affidavit with the prothonotary of the court, alderman or magistrate, in which or before whom such plaintiff or creditor has instituted or is about to institute a suit, (g) stating that he verily believes such stock to be really and bonâ fide the property of the debtor against whom such suit has been or is about to be brought,(h) and also shall enter into a recognizance, with two sufficient sureties, conditioned for the payment of such damages as such court, alderman or magistrate may adjudge, to the party or parties to whom such stock shall really belong, in case such stock should not be the property of such debtor, it shall and may be lawful for such court, alderman or magistrate to cause to be issued process in the nature of a foreign attachment against such stock, and to summon as garnishee the person or persons in whose name or names the same shall be held, and proceed against the said stock and such garnishee, in all respects in the same manner as by the laws of this commonwealth proceedings now are or hereafter may be prescribed in cases of foreign attachments against personal estate; and upon judgment being had in favor of the plaintiff in any such suit, execution may issue immediately for the sale of such stock, in the same manner that goods and chattels are sold on Right of appeal re- writs of fieri facias: Provided, That in case of a judgment before a justice of the After judgment, such stock to be sold on fi. fa. served. 22 April 1863 § 1. P. L. 527. Garnishees to re in certain cases. peace or alderman, where the amount in controversy shall exceed five dollars and thirty-three cents, an appeal shall be allowed to the court of common pleas, agreeably to the same rules and regulations now or hereafter to be prescribed for granting appeals in other cases cognizable before a justice of the peace. 57. Where, in any attachment-execution, or scire facias on foreign attachment, issued out of any court of record in this state, the garnishee, after issue joined therein, shall be found to have in his possession or control no real or personal propcover counsel fees erty of the defendant, nor to owe him any debt, other than such property or debts as shall have been already admitted by the plea or answers of the garnishee, or in case, without going to trial, the plaintiff shall take judgment against the garnishee for what shall be so admitted in his plea or answer, then and in either such case, the garnishee shall be entitled, in addition to the costs already allowed by law, to a reasonable counsel fee out of the property in his or their hands, to be determined and taxed, in case of dispute, by the court, or by some person appointed for that 11 June 1885. P. L. 107. purpose. 58. Where, in an attachment-execution or scire facias on foreign attachment issued out of any court of record in this state, the garnishee shall be found to Garnishee may re- have in his possession or control no real or personal property of the defendant, cover a reasonable nor to owe him any debt, the said garnishee shall be entitled to recover from the plaintiff, in addition to the costs already allowed by law, a reasonable counsel fee, counsel fee. (e) See Lex v. Potter, 16 P. S. 295. Commonwealth v. Watmough, 6 Wh. 137. West Branch Bank v. Armstrong, 40 P. S. 278. (g) Proceedings under this act may be had before judgment. (h) This act was intended to meet cases in which stock of the debtor is held in another's name, to keep it from his creditors; it has no application, where the garnishees have a good title to the stock, as collateral Security. McKee v. Moore, 1 W. N. C. 112. This see tion is not repealed by the act 16 June 1836. Bank v. Kountz, 6 C. Č. 249. EXECUTION. not exceeding ten dollars, to be determined by the court, and taxed as part of the costs. (i) 11 June 1885. Not to exceed $10. Garnishees en 59. Where, in any attachment, attachment-execution, foreign attachment or scire facias or foreign attachment issued out of any court of record in this state, an appearance by attorney shall be, or shall have been entered by any garnishee or garnishees therein, each said garnishee so appearing shall be entitled to recover titled to counsel from the plaintiff, in addition to the costs already allowed by law upon any discon- fees on discontintinuance or other final disposition thereof, prior to answers filed, a counsel fee of ance before at least ten dollars, to be taxed as part of the costs, and to be determined in case of dispute by the court. 60. Each said garnishee so appearing, shall thereupon be deemed and taken to be a party to the cause, and shall be entitled to all process of the court looking to speeding the cause and securing final disposition thereof. answer. Ibid. deemed a party to P. L. 43. April 1872 § 1. How attachments 61. In all cases where execution-attachments have been, or which shall here- 5 after be issued out of any court of common pleas or district court of this commonwealth, attaching debts, moneys, stocks or other property in the hands of any persons or corporation as garnishees, and when, from any cause, proceedings have been stayed on the judgment on which such execution-attachments have been in certain cases. issued, it shall be lawful for the defendant or defendants in the judgments on which said attachments shall have been issued, to file a bond with one or more Bond. sureties, to be approved of by the court issuing said attachment, in such amount as the court shall direct, conditioned that the defendant shall pay to the plaintiff, on the determination of the case, whatever amount shall finally be adjudged to be due by the garnishees under the said attachments, if such amount shall be required to pay the judgment and costs; and on filing such bond, approved as aforesaid, the said garnishee or garnishees shall thereupon be discharged from all further liability under said attachment; but the cause may be prosecuted to final judgment, for the purpose of ascertaining the amount due by the garnishee; but the defendant, and his sureties in the bond, shall alone be liable to pay such judg ments and costs. P. L. 122. VI. Of the writ of fieri facias, and the levy on personal estate. 62. Any writs of fieri facias, hereafter issued within seven days of the next 11 June 1879 § 1. term of court next succeeding the issue thereof, may, at the option of the plaintiff in said writ, be made returnable to the second term after the date of the issuing Return of writs thereof; and the sheriff of any county may proceed to levy and sell any personal issued within property, and levy upon real estate and hold inquisition on the same, by virtue of next terin. such writ, without any further or alias writ. seven days of the P. L. 768. 63. No writ of fieri facias, or other writ of execution, shall bind the property 16 June 1836 § 39. or the goods of the person against whom such writ of execution issued forth, but from the time(k) such writ shall be delivered() to the sheriff, under-sheriff or When fi. fa. to becoroner, to be executed.(m) come a lien. Ibid. § 40. 64. Every sheriff and coroner, their deputies and agents, upon receiving any writ of fieri facias, or other writ of execution, shall, without fee for doing the same, Sheriff to indorse indorse thereon the day of the month, the year and the hour of the day whereon time of receiving he or they received the same.(n) writ. Ibid. § 41. 65. The officer to whom any such writ may be directed shall, if the defendant therein refuse or neglect to pay the debt and costs, proceed to levy(o) and sell so executed. (i) The garnishee is not entitled to a counsel fee where the defendant claims all the property in his Wengert v. Bowers, hands under the exemption law. Freeman v. Warner, 5 Montg. 81. 8 C. C. 292. (k) A fi. fa. binds all the defendant's personal property in the bailiwick, from the time it is put in the sheriff's hands. Duncan v. McCumber, 10 W. And the proceeds 212. Earl's Appeal, 13 P. S. 485. of the sale of personal property levied and sold upon three writs, must, therefore, be appropriated to the first which came to the hands of the sheriff, although the property sold was acquired by the debtor after the first two executions, and before the third came to the sheriff's hands. Shafner v. Gilmore, 3 W. & S. 438. The writ binds the property, whether a levy has Duncan v. McCumber, 10 W. 212. been made or not. Wilson's Appeal, 13 P. S. 429. Schuylkill County's Appeal, 30 ibid. 358. The receipt of a second fi. fa. Watmough amounts to a re-seizure of the goods, and thenceforth they are in his custody on all the writs. v. Francis, 7 P. S. 206. Executions issued on the same day, and delivered to the sheriff at different periods of the day, must be paid out of the proceeds, in the order, as to time, in which they came to the sheriff's hands. Ulrich v. Dreyer, 2 W. 303. The practice is to sell on all the executions in his hands at the time, leaving the responsibility of distribution An to the court, as if the executions were liens on the (1) Leaving the writ at the office or house of the (n) This is directory to the sheriff: the actual same, may be proved by parol. Hale's Appeal, 44 date of delivery, in case of his neglect to indorse the P. S. 438. (0) An actual seizure is generally necessary to con 1 P. L. 768. 16 June 1836 § 41. much(p) of the defendant's personal estate as shall be sufficient for that purpose, (q) and make return of his proceedings to the court, according to the command of such writ. Ibid. § 42. 66. But before making sale as aforesaid, notice thereof shall be given by such Notice of sale to be officer, during at least six days(r) by not fewer than six handbills, to be put up at such places as he shall deem best calculated to give information to the public of such sale. (s) given. 10 April 1849 § 1. P. L. 597. Sale of personal property may be set aside, in certain cases. 67. It shall and may be lawful for any court in the county of Philadelphia, from which any execution or order of sale shall issue for the sale of personal property, to inquire into the regularity and fairness of the sale, at the instance of any party interested, by execution, foreign or domestic attachment, or under a general assignment, upon affidavit of circumstances, before delivery of the goods; and if it appear that the sale shall have been so irregular or fraudulent as, in the opinion of the court, to have produced a sacrifice of the property, to the prejudice of any such party, it shall be competent for the court to set aside such sale, and the same property may be again exposed to sale, as if no such previous sale had been made : ProCourt may direct vided, That it shall be lawful for the court to direct an issue for the trial of questions of fact, whenever the circumstances of the case shall require, and to order the sale, in the meantime, of all perishable or chargeable goods; the proceeds to be held to abide the result of the trial.(t) an issue. 10 April 1848 § 9. P. L. 450. Proceedings to goods levied on. Powers of the courts. VII. Sheriffs' interpleader. 68. Whereas, difficulties often arise in the execution of process against goods and chattels [issued by or under the authority of the courts in the city and county of Philadelphia, and the county of Luzerne], (u) by reason of claims made to such determine title to goods and chattels, by persons not being the parties against whom such process has issued, whereby sheriffs and other officers are exposed to the hazard and expense of actions; and it is reasonable to afford relief and protection in such cases to such sheriffs and other officers; therefore, when any such claim has been or shall be made to any goods or chattels taken, or entitled to be taken in execution(v) under any such process, or to the proceeds of the value thereof, it shall and may be lawful to and for said courts from which process issued, upon application of such sheriff or other officer, made before or after the return of such process, and as well before as after any action brought against such sheriff or other officer, to call before them, by rule of said court, as well the party issuing such process as the party making such claim, and thereupon to exercise, for the adjustment of such claim, and the relief and protection of the sheriff or other officer, all the powers and authorities necessary, and make such rules and decisions as shall appear to be just, under the circumstances of the case; (w) and the costs of all such proceedings shall be in the discretion of the court: Provided, It shall be lawful for the court to direct an issue for the trial of questions of fact, whenever the circumstances of the case require it. Of the costs. Issue may be directed. stitute a valid levy of goods. Trovillo v. Tilford, 6 W. 468. The property levied on must be in the power, or in the view of the sheriff, at the time it is made; Linton v. Commonwealth, 46 P. S. 294; Carey v. Bright, 58 Ibid. 70; and if such seizure be not made before the return-day of the writ, the execution of another creditor, under which an actual levy is subsequently made, will be entitled to the proceeds of sale. Duncan's Appeal, 37 P. S. 500. Stückert v. Keller, 105 P. S. 386. If, in consequence of no valid levy being made, the proceeds of sale are appropriated to a subsequent execution-creditor, the sheriff is liable to the first execution-creditor. Linton v. Commonwealth, 46 P. S. 294. (p) In doing so, he is not bound to fractional exactness, but entitled to a liberal latitude. Earl's Appeal, 13 P. S. 486. (q) He should make a schedule of the property levied on. McClelland v. Slingluff, 7 W. & S. 135. Wilson's Appeal, 13 P. S. 426. And should sell in parcels, not in the mass; otherwise, the sale will pass no title. Klopp v. Witmoyer, 43 P. S. 219. He should also sell in a reasonable time; the continuance of a levy, for the purposes of a lien, and the exclusion of other creditors, is unlawful. Earl's Appeal, 13 P. S. 483. And see Eberle v. Mayer, 1 R. 366. Commonwealth v. Stremback, 3 R. 341. Mentz v. Hamman, 5 Wh. 153. McClure v. Ege, 7 W. 74. Kauffelt's Appeal, 9 Ibid. 335. Weir v. Hale, 3 W. & S. 285. Flick v. Trorsell, 7 Ibid. 65. Lantz v. Worthington, 4 P. S. 155. Lowry v. Coulter, 9 Ibid. 349. Bingham v. Young, 10 Ibid. 395. Keyser's Appeal, 13 Ibid. 409-13. (r) Trespass will lie, for selling without six days' notice. Carrier v. Esbaugh, 70 P. S. 239. (s) An agreement between an execution-creditor and the debtor, that personal property levied on shall be sold on five days' notice, is fraudulent and void as to a subsequent execution-creditor; and a sale to the plaintiff, in such case, confers no title. Gibbs v. Neely, 7 W. 305. If there be no bidders present at the sale, except the plaintiff in the execution, and no bystanders, it is incumbent on him to inquire whether the requisite notice has been given; and a sale to the plaintiff, under such circumstances, no notice having been given, is fraudulent and void. McMichael v. McDermott, 17 P. S. 353. Conniff v. Doyle, 8 Phila. See Swires v. Brotherline, 41 P. S. 135. 630. (t) See Dateman v. Trine, 2 Luz. L. Reg. 103. Mackaness v. Long, 85 P. S. 158. (u) Extended throughout the commonwealth, by act 10 March 1858; infra 69. (v) Under the English statute, a sheriff who intends to levy, may, before actual seizure, apply for relief under the interpleader act. Day v. Carr, 7 Exch. 883. The practice is the same under our statute. Phillips v. Reagan, 75 P. S. 381. Zacharias V. Totten, 90 Ibid. 286. This act is not for the benefit of the claimant, but for the relief of the sheriff, and therefore, a discharge of the rule, and an order on the sheriff to proceed and sell, does not prejudice the claimant's right. Bain v. Funk, 61 P. S. 185. Haubert v. Larzelere, 15 W. N. C. 190; s. c. 33 Pitts. L. J. 38. (w) The courts of Philadelphia have made the following general rule to regulate proceedings under this act: That whenever a rule taken by the sheriff, under this section, shall be made absolute, by the court, without any special order or direction, a feigned issue shall be framed in such case, upon a wager, in 69. That section nine of an act, entitled "An act extending the chancery powers 10 March 1859 § 1. of, and to the jurisdiction and proceedings in, certain courts," approved the 10th the usual form, to determine whether the right of property in the goods levied on and claimed, or any part thereof, is in the defendant or in the claimant; in which issue, the claimant shall be plaintiff, and the plaintiff in the execution, the defendant. Tremont Coal Co. v. Manly, 60 P. S. 384. That the declaration in such issue shall be filed by the claimant, within fourteen days from the time such rule is made absolute; and within said time, the claimant shall give bond to the plaintiff, in such penal sum, and with such security, as shall be approved by one of the judges of this court, conditioned that the goods levied on and claimed shall be forthcoming upon the determination of the said issue, to answer the execution of the plaintiff, if the said issue shall be determined in favor of the said plaintiff in the execution, or as many of them as shall be determined to belong to the defendant, and to be subject to the execution of the plaintiff. Bain v. Lyle, 68 P. S. 60. And that when such declaration is filed and bond given, the sheriff do withdraw from the possession of such of the goods and chattels, seized by him under the execution, as are claimed by the claimant that no action be brought against the said sheriff, in respect of the said goods and chattels; and that the question of costs, and all further questions be reserved, until after the trial of the said issue. It is a breach of the bond if all of the goods are not forthcoming. Hill v. Robinson, 44 P. S. 380. So, a peremptory nonsuit gives a right of action thereon. O'Neil v. Wilt, 75 P. S. 266. Or a nonsuit for failure to appear on the trial. Brenizer v. Cahill, 6 W. N. C. 147. : The act is almost verbatim a copy of the British statute 1 & 2 Will. IV., c. 58, §6; and the courts here, therefore, adopted the English practice under it. Masser v. Auble, 1 T. & H. Pr. § 1135. The affidavit in support of the claim need not be made by the claimant himself. Webster v. Delafield, 7 C. B. 187. And it is sufficient, that the claimant swear positively to his ownership, without showing how he derived title. Kintz v. Malony, 1 W. N. C. 84. And it has been ruled, that the claim, if made in good faith, need not be supported by affidavit. Waterman v. Langdon, 39 L. I. 373. If the sheriff has been guilty of laches in applying for the rule, he is not entitled to relief. Mutton v. Young, 4 C. B. 371. Nor where he has already exercised a discretion in the matter. Crump v. Day, 4 C. B. 760. Nor until he has filed a sufficient inventory. Lentz v. Witte, 1 T. & H. Pr. § 1137. The act does not apply to a case where two different plaintiffs in executions against different defendants, have directed the sheriff to levy upon the same goods. Vandyke v. Bennett, 1 T. & H. Pr. § 1136. It extends to non-resident claimants. Moore v. Lelar, 1 Phila. 72. If the plaintiff do not appear to the rule, the sheriff will be ordered to withdraw from his possession of the goods levied on, and that the plaintiff take no proceedings against him in respect of the goods so claimed. McCorn v. Esher, 1 T. & H. Pr. § 1139. Where the claimant makes affidavit that the goods levied on were never the property of the defendant, and that he does not in any way claim under him, his own bond, without security, will be taken. Faulkner v. Voight, 1 T. & H. Pr. § 1141. Haywood v. Ashman, 8 Phila. 235. See Dallett v. Bond, 1 W. N. C. 358. P. L. 91. time to give security, he must make a special application to the court for that purpose; if he neither file his narr. nor give the bond, the court, on motion of the sheriff or plaintiff in the execution, will make an order that the sheriff do proceed with the execution, and that the claimant be barred of any action against the sheriff, or any one acting by his authority, saving, however, his right of action against the plaintiff and all others; if he file the narr. but neglect to give the bond, the court, on motion, will order the sheriff to proceed and sell, and pay the proceeds into court to abide the determination of the issue: where, however, the case of the claimant is primâ facie very clear, as where he avers that he does not derive title from or through the defendant, and is in exclusive possession, or that his title is derived from a sale of defendant's goods, under public authority, the claimant may obtain a rule to show cause why he should not be permitted to give his own bond, without security. Rump v. Williams, 1 T. & H. Pr. § 1141. See Butterfield v. Hirst, Ibid. The claimant may have an issue without security, but it is no stay. Dillon v. Conover, 2 W. N. C. 126. Where an issue is framed, the claimant is in all cases to be the plaintiff, and the burden of the issue is upon him in the first instance; if he fail to make out his case, there must be a verdict for the defendant in the issue, and the jury need not, in such case, inquire whether the goods are the defendant's, or whose goods they are; the claimant, by the verdict, is shown to be a stranger, who has no right to intermeddle in what does not concern him. The court will not make the particular title set up by the claimant a part of the issue; if he intend, on the trial, to vary from the title previously set up, he ought to give distinct notice, a reasonable time before the trial, of his intention to do So. Conkling v. Sayers, 1 T. & H. Pr. § 1142. See Grant v. Hancock, 5 Phila. 193. The plaintiff in the execution will not be required to give security for damages; but, if he be a non-resident, he must give security for costs. Belmont v. Norris, 1 T. & H. Pr. $1141. One who claimed the absolute ownership to the sheriff, will not be permitted to set up a limited interest on the trial; for if such a claimant truly state his interest to the sheriff, the plaintiff may proceed to sell the property, subject to his rights. Meyers v. Prentzell, 33 P. S. 482. Stewart v. Wilson, 42 Ibid. 450. Horton v. McCurdy, 14 Phila. 221. But see Waverly Coal Co. v. McKennan, 110 P. S. 599. The lien of the fi. fa. is not discharged by a proceeding under this act, although the claimant give bond for the forthcoming of the goods, and the sheriff be thereupon ordered to withdraw from the possession. On the giving of the bond, the property is placed in the possession of the claimant: his custody is substituted for the custody of the sheriff; the property is not withdrawn from the custody of the law; in the hands of the claimant, under the forthcoming bond, the property is as free from the reach of other process, as it would have been in the hands of the sheriff. Johnston v. Minor, 1 T. & H. Pr. § 1143. Hagan v. Lucas, 10 Pet. 400. See Commonwealth v. Contner, 18 P. S. 446. Bain v. Lyle, 68 Ibid. 60. White v. Binstead, 13 C. B. 304. Ward v. Whitney, 7 W. N. C. 95. Fletcher v. Freeman, Ibid. 96. Nealon v. Flynn, 1 Kulp 149. Ware v. Deacon, 7 C. C. 368. And so, That goods taken in execution, and ordered to be delivered to an adverse claimant, on giving bond to the sheriff for their forthcoming, in case of failure to substantiate his claim, are in the custody of the law, and cannot be taken in execution by another judgmentcreditor of the original defendant, would seem to be well settled; and would not be doubted, were it not for a case decided in the court of common pleas No. 2 of Philadelphia, Battersby v. Haubert, 8 W. N. C. 94, and followed by the same court in Taylor v. Bonaffon, 17 Ibid. 425. In the first case, the learned judge, whilst admitting that goods, so circumstanced, cannot be levied upon by an execution issued out of another jurisdiction, decides, that they may be a second time so levied on, by the same officer, under an execution which came to his hands, subsequently to the delivery thereof to the claimant, on his giving bond to establish his title to the same. The learned judge says, there is no case directly in point; but in this he is mistaken. The precise point was determined in Ala where the party claims under a prior sheriff's sale. Peter v. Barron, 1 T. & H. Pr. § 1141. Bank v. Sharp, 1 W. N. C. 6. Becker v. Miller, Ibid. 83. But where the claimant is the wife of the defendant, neither her own bond nor her husband's will, in any case, be sufficient. Jacobs v. Wells, 1 T. & H. Pr. § 1141. Barrett v. Gross, 2 W. N. C. 324. Ward v. Whitney, 5 Ibid. 492. Otherwise, if she be a feme sole trader. Tregar V. Mornhinweg, Ibid. 408. Hahs v. Schmeyer, 6 Ibid. 271. The claimant, if a married woman, need not join in the bond; it is enough, that it be executed by the surety. Warder v. Davis, 35 P. S. 74; s. c. 3 Phila. 322. An assignee for the benefit of creditors must give security. Anderson v. Tyndale, 1 W. N. C. 144. But see Smith v. Stoddart, 8 Ibid. 390. So must a foreign corporation. Emerson v. Grattan, 4 W. N. C. 574. And a non-resident claimant. Scratchard v. Landerberger Manufacturing Co., 10 W. N. C. 452. De Sarille V. Shive, 12 Ibid. 250. If the claimant desire further |