#### Lewis *v.*Protheroe.

In an action of trespass for sale on execution proceedings, by a claimant of the goods, against the sheriff and the plaintiff in the execution, the admission in evidence of the bond of indemnity, given by the plaintiff in the execution to the sheriff, if error, is immaterial error, where the jury were instructed that they could not give punitive damages but must confine themselves to the actual value of the goods at the time of sale, and the verdict made it apparent that they did not disregard the instructions.

It is no cause for reversal, in such case, that the court, in effect, affirmed the following point for plaintiff: “The defendants in the execution, after having levied upon the goods, might have then applied for a rule to interplead, under which the title of the claimant might have been tested without and before any sale ; in that case, if the verdict had established the claim, the proceedings being regular, the defendants would not have been trespassers.

Feb. 28, 1889.

Error, No. 206, Jan. T., 1889, to C. P. Lackawanna Co., to review a judgment on a verdict for the plaintiff in an action of trespass, by Edwin R. Protheroe and wife, in the right of the wife, against William J. Lewis, sheriff, and James L. Connell, at Nov. T., 1886, No. 16. Williams and McCollum, JJ., absent.

The declaration is not given. Plea, not guilty.

The following facts were established, by uncontradicted evidence, on the trial, before Archbald, P. J.:

Previous to 1885, E. R. Protheroe was carrying on a small grocery business in Scranton. In January, 1885, his stock of goods was sold out by the sheriff on a judgment confessed to his father-in-law, David Miles. Miles purchased the whole stock for less than the amount of his judgment. In February, 1885, Kate M. Protheroe (wife of E. R. Protheroe and plaintiff below), obtained a decree entitling her to her separate earnings. After the sale to Miles, E. R. Protheroe continued to carry on the business as agent for his wife.

In September, 1886, the stock was again sold by the sheriff as the property of R. J. Protheroe & Co., on a judgment confessed by R. J. Protheroe, in the firm name, to J. L. Connell, as trustee for the firm creditors. Mr. Connell, was a member of the firm of Megargel & Connell, wholesale grocers, who had sold goods to E. R. Protheroe, E. R. Protheroe, agent, and R. J. Protheroe & Co.

Mrs. Protheroe claimed the goods as her own, and, after the sale, brought this action against the sheriff and Mr. Connell as joint trespassers.

The substantial issues were, first, whether there was such a partnership as R. J. Protheroe & Co.; and, second, whether Mrs. Protheroe had consented that the stock with which her husband had been trading, as her agent, should become a part of the partnership stock.

The deputy sheriff was called by the plaintiff and testified that, before he executed the fi. fa. on the Connell judgment, he compelled the plaintiff in the judgment to give a bond of indemnity. Counsel for plaintiff offered this bond for $3,000 in evidence. Objected to, as irrelevant and immaterial. Objection overruled. Exception. [1]

*416Mrs. Protheroe testified that, at the time of the levy, there were goods of the value of about $1,000, in the store, that she was in the sole possession thereof, and that her husband was acting as her agent, that she was not a member of the firm of R. J. Protheroe & Co. and had not consented that her stock should become a part of the partnership stock. She gave further evidence to corroborate her.

To establish the existence of the firm and Mrs. Protheroe’s knowledge of it, defendants gave in evidence the testimony of several witnesses to conversations about the partnership with Mrs. Protheroe; proof that a new set of books was opened at the time the firm is claimed to have been formed in which Mrs. Protheroe made entries; proof of the opening of a bank account in the firm name; of the signing of the firm name to a check by Mrs. Protheroe; the use of pass books with the firm name on, in which Mrs. Protheroe made entries; and of the purchase of goods from sundry merchants, including the defendant Connell, in the firm name, etc.

The court, after reviewing the evidence, and leaving it to the jury to say whether or not there was a firm, who the members were, and whether or not Mrs. Protheroe consented that the stock of goods claimed by her should go into the firm, charged, inter alia, as follows:

“ Where there are creditors of the husband, and a contest arises between such creditors and the wife, then there is an extraordinary burden' put upon the wife, because of the danger of collusion between husband and wife. The wife there must show that she had a separate estate independently of her husband, and that the goods, or the property which she claims, was purchased by her out of that separate estate. I simply refer to that point in passing. To my mind the rule of law which requires such extraordinary proof of the wife in a contest with the creditors of her husband, does not arise here; because, [from all the evidence• that we have, James L. Connell, trustee, the plaintiff in the judgment upon which these goods were sold, does not stand in a position to contest the right of Mrs. Protheroe as they arose under the sheriff’s sale made by her father in January, 1885.”] [2]

“ Mrs. Protheroe and her husband testify that the day of the levy they were in possession of this stock of goods there in their store. That store building, at least including the store room, was under a lease with Mr. Thomas. When the levy had been made, by the advice of counsel, as I understand it, Mr. and Mrs. Protheroe made an inventory of the stock of goods there, and this inventory is produced here as the measure of the value which these goods were properly to be held at; I understand this foots up about $900. There is some evidence on the part of the defense produced to assail these values fixed upon these goods. It is claimed that the safe is two years old; that the spring wagon was an old one and not a new one, and would be worn out from the use given to it. These *417are questions, of course, affecting the values fixed in this inventory, and you are to judge of the values that are put in this inventory, by this evidence, with the other evidence in the case. Again, the goods sold at the sheriff’s sale for $275.25. The deputy sheriff says they sold at fair prices for such a sale. You may consider that, in arriving at the question of the value of these goods. But still, we have as a matter of experience that such sales are forced sales, and that when the.sheriff’s hammer falls the prices are not exorbitant which purchasers give, and usually fall, as we know, below the actual values of the goods sold. If, then, the plaintiffs are entitled to a verdict, they are entitled to a verdict for the value of these goods as they stood on the day of the sale; and, as the plaintiffs were deprived of this property at that time, you may properly allow, in calculating damages, interest upon the value of these goods from that time, as a part of your damages; so for the time they were dispossessed of the use of that store, pending the time it was locked up until the sheriff’s sale, whatever damage that was, you may consider. You may properly take into consideration everything by way of damage that was the natural result of this trespass, if you find that it was a trespass. I do not consider that the breaking up of the business, that is, the disturbance of the business, can be taken into consideration. The parties could buy other goods and go on. Nor is this a case where the question of punitive damages comes in, because the sheriff is one of the defendants, and I cannot see anything in the evidence that would entitle you to give damages by way of punishment for any recklessness of conduct on the part of the sheriff. The sheriff simply went there to do the duty which the law imposed upon him. [Of course he is liable for compensation the same as any other person, but he cannot have damages to punish him extra; he is liable for compensation though he is the sheriff, because he has his bond for protection.”] [3]

“ If you find for the defendant, you will simply say in your verdict, we find for the defendant. [If you find for the plaintiff, then you will state, in a round sum, the amount of the damages which you award her.”] [4]

Plaintiff requested the court to charge the jury, inter alia, as follows:

“ 4. The defendants, after having levied upon the goods claimed by Mi's. Protheroe, might have then applied for a rule to interplead, under which the title of Mrs. Protheroe to the goods might have been tested without and before any sale; in that case, if the verdict had established her claim, the proceedings being regular, the defendants would not have been trespassers. *Ans.*That is, this is to say, the sheriff might have come into court and asked the court that Mrs. Protheroe, who claimed the goods, should maintain her claim in court, and, on the other hand, that Mr. Connell, the plaintiff in that judgment, should maintain his claim, which was that these goods were the firm property. Then an issue would be made *418up'in that case, in court here, and that question would be tried out before any sale, before anything had occurred more than the mere levy. This point desires me to instruct you that way, and I instruct you that that is the law, that that course might have been pursued. Then if Mrs. Protheroe failed to sustain her claim in that issue, the sheriff could have gone on and sold the goods out. So this thing would have been tried out before any damages had occurred. Now we have got to try the matter out after the sale. The matter cannot be repaired if there has been any damage. The parties, as I said to you in the start, stand upon their legal rights; if these legal rights are with the defendants, then the verdict must go that way; if the legal rights are with the plaintiff, it must go for her.” [5]

“5. If the jury believe that the stock of goods sold at sheriff’s sale as the property of R. J. Protheroe & Co., was, in January of 1886, or prior thereto, the stock of Mrs. Protheroe, the burden of proof is on the defendants in this case to show that she sold or otherwise disposed of her rights to such stock. *Answer:*That is true, and I affirm it.” [6]

The questions before the supreme court were considered by the court below, on a motion for a new trial, in the following opinion, by Archbald, P. J.:

“ It was certainly a part of the plaintiff’s case to show that the sale by the sheriff was made at the instance and direction of Mr. Connell. Whatever tended to establish this was therefore relevant to the issue. We are not now concerned how far the proofs may have been cumulated upon this point. The only question is as to whether the bond of indemnity was evidence upon it. The plaintiff was not obliged to stop with the mere proof that the deputy sheriff had been told by Mr. Connell to go on, after the claim of Mrs. Protheroe to the goods had been reported to him. She was entitled to the fact that the sheriff had been indemnified by him, for this conclusively established his participation in the alleged trespass: Davis *v.*Newkirk, 5 Denio, 92; Herring *v.*Hoppock, 15 N. Y. 409; Lovejoy *v.*Murray, 3 Wall. 1; Longcope *v.*Bruce, 44 Tex. 434. The best proof that the bond had been given was the bond itself, and to this the plaintiff might have been compelled to resort, had defendants’ counsel objected. But, even though no such objection was made, the plaintiff was not obliged to content herself with less than this, and it affords no valid ground of complaint that she saw fit to prove her case in this respect more completely than was demanded of her.

“ The instructions given at the request of the plaintiff with regard to the right to have the matters now litigated anticipated and determined upon interpleader proceedings, might well have been omitted. This right was peculiar to the sheriff, and, except upon his motion, neither Mrs. Protheroe nor Mr. Connell could have had any concern therein. The plaintiff’s point did not put this clearly, but, whatever inaccuracy there was in this respect, the answer of the *419court corrected it. The jury were therefore correctly instructed thereon as a matter of abstract law, and the only question is whether, assuming that these instructions were irrelevant, it was error to have given them under the circumstances. It is not sufficient for the defendants to show their mere irrelevancy. Correct or even incorrect instructions upon an irrelevant point amount to nothing unless the jury have thereby turned aside from the real issues in the case. Without this, the error, if any, is immaterial, and it is the rule of the supreme court — which we may properly apply in reviewing our own errors — that they will not reverse for immaterial error. I am satisfied that such is the character of that which is now complained of. The jury were told that the sheriff might have applied to the court for a rule upon Mrs. Protheroe and Mr. Connell to interplead, and that, had this course been taken and an issue framed between them, the respective rights of the parties might have been tried out before a sale. It was not said that this ought to have been done, nor that any greater or different liability was imposed upon the defendants because it was not. On the contrary, the jury were instructed that the parties stood upon their legal rights, which had been previously stated and explained to them at considerable length in the general charge. The only possibly misleading effect which the instructions complained of could have upon the jury, that I can see, is in the matter of damages. They might have inclined to accord her more if they obtained the impression that the conduct of either of the defendants was oppressive. But the measure of damages was also carefully laid down to them. They were instructed that the sheriff merely pursued his bounden duty, and that no punitive damages could be given against either defendant. They were expressly limited to compensation for the direct injuries sustained by the plaintiff in the loss of her goods, and her exclusion from the store premises during the running of the levy. The verdict which they have rendered is clearly confined to these elements of damage. The value of the goods, according to the weight of the evidence, was about $900. Interest upon this for two years from the date of the sale up to the time of the trial would make about $100 more. The jury have stated these in a round sum, as they were directed to do, and returned a verdict of $1,000.”

Verdict for plaintiff for $1,000 and judgment thereon.

*The assignments of error*specified, 1, the admission of the bond of indemnity in evidence, quoting the bill of exception; 2-4, the portions of the charge enclosed in brackets, quoting them; and, 5 and 6, the answers to plaintiff’s points, quoting them.

*James H. Torrey,*with him *C. R. Pitcher,*for plaintiff in error.

The case was so presented that the sheriff was kept out of sight and his co-defendant, Mr. Connell, was compelled to bear all the brunt of the case. The bond of indemnity was offered in evidence for this purpose and for the additional purpose of. trying to impress the *420jury that the amount of the bond ($3,000) was some guide in the ascertainment of the amount of damages. If Mr. Connell was the plaintiff in the execution, and the sheriff acted under his direction, (as was proved by the deputy sheriff) then he was clearly liable for any trespass that was committed and it was of no interest to the plaintiffs whether the sheriff was indemnified or not. That was entirely res inter alios acta. The same tendency to bring out Connell and keep the sheriff in the shade is seen in the part of the charge covered by the third specification of error.

It is not true that the defendants might have applied for an interpleader. That is a privilege strictly confined to one of the defendants, namely, the sheriff. It is not true that an application for rule to interplead would have furnished the defendants with an easy method of compelling Mrs. Protheroe to establish or release her claim before and without any sale. Such would have been the effect as to the sheriff if such rule had been granted, but she might have utterly refused to come in on the interpleader and still have surrendered none of her rights against Connell. Larzelere *v.*Haubert, 109 Pa. 515 ; Haubert *v.*Beckhaus, 13 W. N. C. 327.

Even as to the sheriff, the point gives a wrong impression of the law, for, if he had applied for a rule to interplead, the court might have refused or discharged it, in which case he would have been liable to an action by the claimant. Bain *v.*Funk, 61 Pa. 185.

All this had a distinct and powerful tendency to influence the minds of the jury against Mr. Connell, and to impress them with the idea that he had gone on in an arbitrary and vindictive spirit to commit a trespass upon a helpless woman, while the courts were all the time open for him to settle her rights without any damage done.

In a case as delicately balanced as this, upon the question whether plaintiffs were entitled to recover at all, this single false impression may easily have turned the scale and made all the difference between a verdict for the plaintiffs and one for the defendants.

The verdict of $1,000 shows that the jury understood by a “ round ” sum just what Webster gives as his fourth definition of the word “ round,” viz.: “Full, complete, not broken. ‘ Pliny put a round number near the truth, rather than the fraction.’ — Arbuthnot.”

*C. Comegys*and *Thomas F.*Wells, for defendants in error,

not heard. — If the bond was evidence for any purpose, there was no error in admitting it in evidence, no'matter what other effect it might have had: R. R. *v*Eby, 107 Pa. 166.

It was necessary for plaintiff below to show Mr. Connell’s connection with the case, and that is well done by the bond: Davis *v.*Newkirk, 5 Denio, 92; Herring *v.*Hoppock, 15 N. Y. 409; Welsh *v.*Cooper, 8 Pa. 217.

The giving of the bond by Connell made him a principal in *421the trespass : Welsh *v.*Cooper, supra; Zacharias *v.*Totten, 90 Pa. 286; Vetter’s Ap., 99 Pa. 52.

March 18, 1889.

Nowhere did the court below intimate that Mr. Connell had the right to ask for a rule to interplead, but, on the contrary, positively said that that right was the sheriff’s. Nor was it said that such rule should or ought to have been asked for, but only that it *might*have been.

The verdict was for a sum barely sufficient to repay Mrs. Protheroe for the stock taken from her. Therefore, if mistake there was, it worked no injury; such errors are not grounds for reversal. Eldred *v.*Hazlett’s Adm’r, 38 Pa. 16; Cole *v.*Bolard, 22 Pa. 431; Bush *v.*Stoweli, 71 Pa. 208; Hoskinson *v.*Eliot, 62 Pa. 393; Galbraith *v.*Zimmerman, 100 Pa. 374; Trego *v.*Pierce, 119 Pa. 139.

Per Curiam,

The question of Mrs. Protheroe’s ownership of the goods sold by the sheriff was fairly submitted to the jury. That she had title at one time to the stock of goods in the store was established by uncontradicted evidence. It had formerly been sold by the sheriff upon an execution against her husband, and bought in by the execution creditor in her interest. Subsequently, upon the application to the court of common pleas, she was allowed to enjoy her separate earnings under the Act of 1872. She was thus fully equipped for business. She had a stock of goods, the title to which was unassailable, and was entitled to her separate earnings. So far, I do not understand the case of the plaintiff below to be questioned. It was alleged, however, that subsequently she became a partner with R. J. Protheroe & Co., or, at least, permitted her stock of goods to be mingled with that of said firm. There was some conflict of evidence on this question; in one instance she was shown to have signed a check in the name of that firm. All this was submitted to the jury, and they have found that the goods belonged to the plaintiff. We see no serious error in the manner of its submission. The bond of indemnity might well have been excluded (see first and third assignments), but its admission could have done the defendants no harm. The only effect it could have had was upon the question of damages. The learned judge, however, distinctly told the jury that they could not give punitive damages, but must confine themselves to the actual value of the goods at the time of the sale. It is apparent from the verdict that the jury did not disregard this instruction.

It was not error to instruct the jury that James L. Connell, trustee, had no standing to contest the right of Mrs. Protheroe under the sheriff’s salé made by her father in 1885 ; and,, while it is true that the sheriff might have protected himself from an action of trespass by applying to the court for a rule to interplead, in point of fact he did not do so, and of course cannot claim now the protection of the interpleader Act. In this view, I cannot even guess intelligently at the object of the defendant’s fourth point. The learned *422judge might well have refused to answer it. He did answer it at some length, and the point and answer, taken together, form a rather interesting statement of what might have happened in some other case. We see nothing else in the record requiring comment.

Judgment affirmed.

Petition for re-argument.

The petition averred that the fact that counsel for defendants in error were not heard, instead of being an advantage, seemed to have been a serious detriment; for, by reason of it, the opportunity was lost of replying to the very arguments which have availed in the mind of the court to sustain the judgment, while practically reversing the court below.

While very little evidence was offered as to the value of the goods, enough was given to discredit the inventory. Old articles were appraised at more than their original cost. The goods brought at sheriff’s sale only $275.25, though the testimony is that they were sold, in small lots at fair prices. It does not, therefore, follow that the jury allowed no punitive damages, because their verdict was about the sum demanded by the plaintiffs as compensation. If the admission of the bond was error, we think it was reversible error.

The main question all through the case was not how much the plaintiffs should recover, but whether they were entitled to recover at all. That being the question, and the evidence [as stated in the above report] leaving it very delicately balanced, plaintiff’s 4th point, suggesting as it does high-handed, overbearing precipitancy of action on the part of the defendants, was enough to turn the scale.

Per Curiam,

April 1, 1889.

Re-argument refused.

WM. M. S., JR.