Reid v. Lindsey, Sterrit & Co.

Mr. Justice Green delivered the opinion of the court, November 5th 1883. We decided in Batdorff v. Focht & Brother, 8 Wr. 195, that the lien of a fi. fa. upon goods levied on under the writ was not lost by reason of a judicial order staying it until a rule taken on part of the defendants should be disposed of, although there was no stipulation in the order staying the writ that its lien should remain. The very question was raised on the record on distribution of the proceeds of the goods which were sold' on a subsequent writ, and the money was awarded to the first writ upon the express ground that the lien was not lost. The same doctrine was again declared in Bain v. Lyle, 18 P. F. S. 60, and although in that case a bond had been given for the return of the goods, it was held to be no substitute for the [160] goods, and that the lien of the execution was not discharged. In Kightlinger’s Appeal, 5 Out. 540, these cases were recognized as full authority for the rule, and would certainly have been applied had the circumstances of that case required it. It was unnecessary to do so, but only because an order continuing the lien had been made when the stay of proceedings was granted. The rule itself was vindicated by Woodward, J., in Batdorff v. Focht & Brother, by the proposition that the lien of a ñ. fa. after levy is a vested lien which cannot be impaired by an interlocutory order. Although, as was there said, it is the usual and proper practice, to direct that the lien shall remain, when a stay is ordered, it was held to bo unnecessary. The judge said, “But where, as in this case, it-is omitted, the lien must, nevertheless, be regarded as preserved, for it is one of the vested legal rights of the plaintiff, and can no more be sacrificed by an edict of the court without a hearing than any. of his other civil rights, whether of liberty or property.” This reasoning is so entirely satisfactory that it need not be extended. In Batdorff v. Focht, and in Kightlinger's Appeal the lien was made effective by awarding priority to the writs in the distribution of the proceeds of the sale of the goods upon subsequent writs, although in the latter case an interval of nearly four years elapsed between the granting and discharge of the rule to open the judgment. In Bain v. Lyle an execution against Austin was levied upon goods which were claimed by Corry. The latter gave an interpleader bond to the sheriff, and the goods were thereupon delivered to him. Subsequently they were sold on an execution against Corry, and purchased by a stranger. The interpleader issue being decided in favor of Austin, it was held he might follow the goods in the hands of the purchaser at the last sale. This, of course, was upon the theory that the original execution creditor could not be deprived of his recourse to the goods, notwithstanding they had been given up to the adverse claimant upon his substituting an interpleader bond in their place._ In the present case the bond given was a general indemnity bond only, and in no sense a substitute for the goods. It was for indemnity against all damages which might be sustained by reason of the order staying proceedings. It contained no provision for a return of the goods. It is plain then that if any of the goods originally levied upon still remained in the possession of the defendant in the execution, or of his assignee, for the benefit of creditors, who is merely his representative (In re Fulton’s Est., 1 P. F. S. 204), it was the right of the plaintiff to seize them by another writ, and 'sell them in satisfaction of his claim. If they had passed to an assignee in bankruptcy, which does not appear in the testimony, they would still be subject to the lien of the [161] levy originally made. The offer of proof was somewhat indefinite, but in substance it was proposed to show the value of the goods which remained subject to the levy at the time of the final judgment, and that the plaintiffs could have realized the greater part of their judgment out of personal property which remained subject to the levy. This offer was rejected on the ground that the lien of the execution was dischargedand that the property had passed to an assignee for the benefit of creditors, and afterward to an assignee in bankrnptey. This was an insufficient objection, and the learned court below was in error in rejecting the offer, and the judgment must therefore be reversed.- The evidence offered was material because it might show that the sureties in the indemnity bond were released in whole or in part by. the omission of the plaintiffs to seize and sell the remaining goods. We cannot pass upon that question any further at this time, because the evidence is not before us. It is enough to know that a total or partial discharge might be the result of the admission of the rejected testimony. Judgment reversed, and venire de novo awarded.