
    [Chambersburg,
    October 24, 1825.]
    MITCHELL’S Administrator against STEWART and another.
    IN ERROR.
    A landlord claiming to be paid his rent out of the proceeds of an execution is bound to give notice thereof before the execution is returned.
    An erroneous order of the court made in the absence of the party affected will not bind him, where the party claiming exemption by virtue of such order was before the court, and neglected to apprize the court of the facts.
    In the Court of Common Pleas of Cumberland county, to which this writ of error issued, a judgment was entered by the plaintiff below, and plaintiff in error, Andrew Mitchell, against John Stewart and Samuel lleditt, the defendants below, and defendants in error, at January term, 1820, on a bond and warrant of attorney, bearing date the 27th of May, 1819, in the sum of five hundred dollars.
    The plaintiff indorsed on the declaration, that by the condition of the bond, the defendants agreed “ that the defendants would deliver and cause to be delivered to the plaintiff, sheriff of Cumberland county, personal property, when and where required, after the 1st day of July next after the date, to satisfy an execution, then in the hands of the plaintiff, in favour of John Capp, Esq. to August term, 1819, with all legal costs and charges, or pay the same, and save harmless the plaintiff and his sureties,” and averred a non performance thereof. The plaintiff moved for leave to issue a fieri facias for one hundred and fifty-four dollars and ninety-eight cents, the balance claimed on the statement made by him, and the following facts were agreed to by the parties, to be considered in the nature of a special verdict. *
    A levy was made by virtue of the fieri, facias mentioned in the condition of the bond by the plaintiff as sheriff on the goods of the defendant Stewart, on the 27th of May, 1819, and the bond was executed by the defendants Stewart and Reditt, after the said levy, and on the same day and year. In consequence whereof,, the plaintiff delivered over the property to the defendants in the execution.
    On the 1st of November, 1819, the defendants paid to the plaintiff one hundred dollars on account, and delivered to the plaintiff certain personal goods, a parcel of the goods levied on as aforesaid, which were sold by the plaintiff for ninety-three dollars. On the 7th of February, 1820, upon the motion of John Rame, the court ordered and directed the sheriff to pay over to the said John Rame, seventy dollars, part of the ninety-three dollars, in discharge of one years’s rent due from the said Stewart, to the said Rame, at the time the said goods were levied as aforesaid, for the premises on which the said Stewart then resided, on which the said goods were found, at the timé of said levy, but no notice was given by the said Rame to the plaintiff, of said rent, or. demand of payment thereof until the 7th of February, 1820. And the said Reditt, one of the defendants, was at the time of the execution of said obligation and until the said 7th February, 1820, entirely ignorant that any rent was due to the said Rame.
    
    Upon the foregoing facts, the defendants contend that they are not liable to pay to the plaintiff the aforesaid sum of seventy dollars paid by the plaintiff to the said Rame, but that they ought to be credited for the same out of the balance due on the foregoing statement.
    It is agreed that if the court shall be of opinion, that the defendants are not legally chargeable with the foregoing sum of seventy dollars, paid under, and in pursuance of the orders' of the court, to the said Rame as aforesaid, and that the same was improperly deducted from the amount of sales, then the said seventy dollars shall be deducted from the balance stated; but if the same is legal and proper, then that execution shall issue for the said balance with interest from the 1st of November, 1819.
    The court below, after argument, directed the seventy dollars to be deducted from the balance in the plaintiffs’ statement, and that execution should issue only for the amount then remaining, viz. eighty-four dollars ninety-eight cents.
    
      Carothers, for the plaintffs in error.
    This case depends on the condition of the bond from Stewart and Reditt, to Mitchell. They were bound to deliver goods sufficient to satisfy Cappas execution, with all legal costs and charges, or to pay said debt and costs, and save the sheriff harmless. But they have not kept the sheriff harmless- The sheriff had in the first place to pay seventy dollars, due to Rame for rent, and these seventy dollars are how the matter in dispute.
    
      Williamson, contra.
    We contend that the defendants are bound only to pay the debt and costs on Capp’s execution. Bonds like this should not be encouraged, because they induce the sheriff to neglect his duty, and postpone the sale of goods levied on. Reditt is only a surety, whose liability is not to be enlarged beyond the words of his contract 9 Wheat. 680. 7 Cranch, 90. The intent of this bond was, that the obligors should pay Cupp’s execution, namely, his debt and all costs and charges: there was no view to any rent due to Rame. The words, save harmless, were not intended to extend beyond this. Special covenants are not to be extended by general words coming afterwards. 2 Saund. 412, 415. 9 Wheat. 720. 2 Bl. Rep. 934. 1 Stra. 227. When this bond was given, the rent due to Rame was not known to the surety or the party. The levy was made on the 27th of May, 1819; the execution was returnable to the first Monday of August term, 1819; there was no notice of the rent to the sheriff till the 7th of February, 1820. The sheriff is not bound on an execution to levy more than the debt and costs. 6 Johns. 283. Act 21st of March, 1774, sect 4. New Purd. Dig. 709. 1 Selw. N. P. 534. 2 Yeutes, 274. The order of the court was illegal, and the sheriff was not bound to obey it.
    
      Carothers, in reply.
    The defendant had an election to pay the debt and costs to Capp, or give the sheriff goods to that amount. The defendants did deliver some goods in November, 1819, but they were liable to the rent. The court ordered the sheriff to pay the rent, and would have attached him if he had disobeyed. The legality of the order of the court is admitted by the statement of this case: we have not the facts on which the court decided.
   The opinion of the court was delivered by

Gibson, J.

If the landlord’s application had been in time, we should entertain no doubt that there had been a breach of the condition of the bond. The sheriff had levied, and we may presume, on sufficient to produce satisfaction not only of the*exeeution, but also of the rent; and it is a fair construction of the agreement to say, that in consideration of releasing the property from the levy, the defendants below were to put him in a situation equally advantageous, by delivering him property equally productive: and whilst he remained subject to any responsibility which arose out of the levy they were bound to keep him clear. The question then is, did they, as circumstances turned out, keep him clear. The act of the 21st of March, 1772, directs that chattels levied in execution shall be subject to payment of a year’s rent for the premises on which they shall be seized; and that the sheriff shall after the sale of the said goods, pay to the landlord or other person empowered to receive the same, siich rent so due, and apply the overplus thereof if any, towards satisfying the debt and costs on such execution mentioned.” Now it is a part of the case, that notice of his claim was not given by the landlord till lo>--g after the time when the execution was returnable; and he had tberefore undoubtedly lost his preference. It is the business of a sheriff who is acting without notice of any other demand which he may be bound to satisfy, to levy no more than is sufficient to satisfy all demands already in his hand; and although I will not at present say he ought to have notice of a landlord’s claim in time to enable him to extend his levy, yet if the landlord lie by till after the return of the execution he will undoubtedly be postponed. The existence of his demand is a matter peculiarly within his own knowledge, and he is therefore bound to give notice of it in time to produce as little delay to the execution creditor as possible. But, to say nothing of the delay, it would be attended with extreme hardship, if not injustice, to permit him to disclose his demand for the first time after the execution is returned, and the remaining property of the debtor has perhaps been attached by other executions; and thus enable him to intercept thf money in its passage from the hands of the sheriff to rhe pocket of the execution creditor. A second execution would probably produce nn beneficial result, as landlords seldom claim a preference where there is not a scramble among the creditors. In this case, then, when the landlord claimed to have a part of the money applied to the extinguishment of the rent, he had lost his preference; and the defendants had consequently performed the condition of their bond by delivering property sufficient to satisfy the execution and save the plaintiff harmless. The proceeds of it were, however, wrested from the plaintiff by order of the court. Bui what is that to the defendants, who had covenanted to indemnify him only against legal resposibility, and not against the consequences of an erroneous opinion of the court. They are third persons, and not to be prejudiced by acts which can operate only on him who is the immediate subject of them. At the return of the execution, they had performed their covenant by protecting the plaintiff frqpi the lawful demands of all persons, till all danger from lawful demands had passed away; and cannot now be held answerable for a manifest error of the court in a proceeding to which they were not a party; much less be concluded from contesting the only fact that could warrant the act of the court — notice to the plaintiff in time to render the landlord’s claim available. It was the plaintiff’s business to make out to the satisfaction of the court, what is now conceded to be the truth of the case, that he had not received such notice; and if he failed to do so, he, and not the defendants, must take the consequences. It is the opinion of this court, therefore, that the court below did not err in directing the money which was paid over to jthe landlord, to be deducted.

Judgment affirmed-.  