Rees v. Chantler

Opinion by William W. Porter, J., The claims, the collection of which by execution is sought to be restrained, are within the provisions of the act of 1872 and its supplements of 1883 and 1891. We have sufficiently discussed the scope of these acts in respect to the classes of persons entitled to the benefit of their provisions in an opinion filed this day in the case of Rees v. Plulings. The present case raises a question as to the right to restrain the constable’s levy by injunction. The property levied upon in Allegheny county is described as a “ flat ” or boat equipped with machinery for dredging, but not for propulsion. It had been previously in Beaver county, where it was levied upon by virtue of execution sur judgment by the sheriff of Beaver county. By agreement between the execution creditors, the said sheriff and the assignee for the benefit of creditors, this boat (as well as other property of Hulings Brothers), was turned over to the assignee for the purposes of sale. The assignee, in carrying out the purpose of the agreement, removed the boat into Allegheny County. There the constable made his levy upon it by virtue of execution sur judgment. This is alleged to be illegal. It is claimed that the property was still in the custody of the [275] sheriff of Beaver county; that the assignee was his agent and representative by the terms of the agreement, and that such agreements have been upheld by the courts. Broadhead v. Cornman, 171 Pa. 322, Mathews’s Estate, 144 Pa. 139, and Kent, Santee & Co.’s Appeal, 87 Pa. 165, are correctly cited to us in confirmation of the latter propositions. If the property had remained in Beaver county and the constable’s levy had been lawfully made there, the contention would be sound in its entirety, — there being no taint of fraud in the transaction. The sheriff could not take property, in bis custody under writs of execution, into another county for sale except at the peril of losing his official control of it, and what he had no right to do himself, he could not authorize another to do. When the property left the county of Beaver, it left the official protection of the sheriff of that county to the extent of exposing it to seizure and levy in the jurisdiction to which it was removed. The court, therefore, properly refused the writ of injunction. The decree of the court below is affirmed.