Kaine's Appeal

Mr. Justice Paxson delivered the opinion of the court, November 28th 1879. The executions in this case were both irregular under the authority of Hare v. The Commonwealth, to use of Porterfield & [276] Co., decided at this term, ante, p. 141. It was there held that in a proceeding to levy and sell upon an execution issued upon a judgment against a member of a firm for his private debt, his interest in said firm, the directions of the Act of 8th April 1873, Pamph. L. 65, must be conformed to, and that the fieri facias must be a special writ, commanding the sheriff to sell the interest referred to, &c. These executions were in the usual form, and the sheriff might well have refused to make a levy under them. But he did levy and sell, and the money is now in court for distribution, and claimed upon each writ. To which must it be applied ? Obviously to the one on which the sale was made. The record shows that it was made upon the Kaine writ. It could not have been made upon the Harris writ as the fieri facias had been returned with the levy, and a venditioni exponas issued on the 28th day of September. This was only two days before the sale on the Kaine writ. It is plain therefore there was not and could not have been a sale under the venditioni exponas. Nor could the latter hold the proceeds by virtue of the lien of its prior levy, for not being in conformity to the Act of 1873 it conferred no lien. In such case the execution upon which the property was sold must take the money. The facts of the case as well as the sheriff’s return show that the money was made on the Kaine writ. The decree is reversed at the costs of the appellee, and it is ordered that the fund in court be paid to the appellants.