Commonwealth v. Comrey

Citations

• 174 Pa. 355
• 34 A. 581
• 1896 Pa. LEXIS 889

Syllabus

<p>Execution— Sheriff — Sale of leasehold — Negligence.</p> <p>A sheriff who sells a colliery leasehold together with the machinery in place, and upon failure of the purchaser to pay his bid allows the return day of the writ to pass by without putting the property up for resale, is liable to another execution creditor who is injured by his neglect, and he is not relieved by the fact that such execution creditor consented after the return day to the purchaser remaining in possession for a certain limited period for the purpose of obtaining the money with which to pay the sheriff.</p> <p>Execution — Sheriff—Return—Act of Ajiril 20, 1846.</p> <p>A sheriff after selling a colliery leasehold together with the machinery in place accepted the purchaser’s receipt for the balance due, and made a return as is prescribed by the act of April 20, 1846, P. L. 411, in cases of sales of real estate to lien creditors. Exception was made to the return, and an auditor was appointed who reported that the sheriff had no right to take the purchaser’s receipt inasmuch as the property sold was not real estate, and therefore not within the provisions of the act of April 20,1846. No exception was taken by tire sheriff to the auditor’s report, and no appeal was taken by him from the order confirming it. Subsequently suit was brought against the sheriff by an execution creditor who was injured by his action in taking the purchaser’s receipt. Held, (1) that the sheriff was a party to the proceedings before the auditor; (2) that the matter decided by the auditor was res judicata; (3) that a judgment against the sheriff in the action for damages should be sustained.</p>