
    [Philadelphia,
    April 4th, 1836.]
    BURCHARD against REES.
    1. Where an assignment of goods was made for the benefit of creditors, and the assignee advertised the property for public sale at a certain time, at which time there was no rent due, and before that time the landlord distrained, and prevented a sale, and then the sheriff seized under an irregular execution, and sold, and out of the proceeds paid the rent accruing to the landlord ; it was held, in an action of .trespass brought - against him by the assignee, that he was not entitled to any deduction for the rent so paid to the landlord.
    2. Whether.a levy upon goods in a shop in the lower part of a house amounts to a levy upon the furniture in the upper part of the same house ?
    An action of trespass was brought in this Court by Jabez Bur-chard, assignee of Henry H. Porter, against George Rees, sheriff of the city and county of Philadelphia, James G. Clark, John Hemphill and Mark Richards, to recover damages for taking the goods of the plaintiff.
    The case was tried on the 10th of February, 1836, at a Court of Nisi Prius held at Philadelphia, by Kennedy, J. and a verdict rendered for the plaintiff for the sum of $826,; and now upon a rule which had been obtained to show cause why a new trial should not be granted, the facts appeared to be as follows :—
    On the 25th of February, 1832, James G. Clark obtained a judgment by confession against Henry H. Porter for $1017, in the Supreme Court. On the 7th of March, 1832,' a writ of -fieri facias issued upon this judgment, returnable on the 31st of the same month, being the last return day of the March term, which was lodged in the sheriff’s office on the day it issued.
    On the 14th of March, 1832, Henry H. Porter, the defendant in the judgment, executed an assignment of all his estate and effects to Sheldon Potter in trust for the benefit of his creditors. The assignment was duly recorded, and an inventory of the effects assigned was made by the assignee, and filed according to law. Porter, the assignor, carried on business as a' bookseller and publisher on the ground floor of the building, and had furnished rooms in the upper* part of the same house.
    On the 16th of March, a sheriff’s officer, named Heston, went with th & fieri facias to the shop of Porter, where as it was testified by a witness who had been in the employment of Porter, he exhibited the writ; and being told that an assignment had been made, he went away; and returned on the same or the next day, when he was informed that an inventory had been made by the assignee, and that it was not necessary to take another. He then went away, saying,' he would submit the case to the attorney for the plaintiff. He did not say, while there, that he made any seizure of the property, nor did he leave any person in charge, nor did he go into any other part of the house than the shop.
    No further proceedings appear to have been had on this execution until the 7th of April, when the goods in the house, including the books and household furniture, were removed by the sheriff; and a few days afterwards they were sold. The proceeds of the goods in the shop, were $165,75, and of the other articles sold, $506,60; in all $672,35. '
    Of this sum the sheriff on the 10th of May, paid to the landlord of Porter $293,34, being the amount of rent due to him to the 18th of April, and as it appeared, the amount of one quarter’s rent, de- ' ducting two days ; the quarter not expiring until the 21st of April. The attorney of the plaintiff, in the execution, (Clark) signed an agreement authorising the payment to the landlord, so far as the plaintiff was concerned. The landlord in his receipt engaged to exonerate the sheriff from liability by reason of the payment to him. The balance of the money in the sheriff’s hands was paid to the plaintiff in the execution. ,
    The writ of fieri facias, under which the sale took place, was not produced at the trial, but it was agreed that the only endorsement on it was the following in pencil marks made by the sheriff’s officer, Heston,
    “ March 16th, 1832. Levied on all the goods and chattels of the defendant at his bookstore, consisting of an assortment of books, fixtures, &c.”
    Judge Kennedy charged the jury in substance as follows:—
    “ The fi. fa. being in the hands of the sheriff and in full force at the time Porter assigned the goods to Potter, was a lien upon them, and the sheriff had, therefore, clearly a right to seize and take them in the hands of Potter, the assignee, at any time thereafter before the expiration of the return day of the writ. But,,if he omitted or neglected to make a seizure until after that, he could not do it then. The lien, created by issuing and placing the fi. fa. in his hands, expired with its return, as well as all authority thereby given to him to take the goods. If, however, he made a seizure upon any part of the goods before the return of the fi. fa. he might well complete the execution of it, thus begun, by making a sale of the goods so seized after the return thereof. It is alleged and argued by the defendant’s counsel, that there was a seizure of part of the goods in the name of the whole, before the return of the writ. If the sheriff or his deputy had made such seizure, when all the goods were within his power, it would have been good, if followed up with reasonable diligence. But what evidence have you of such a seizure? The writ offi.fa. itself is mislaid or lost, and has not been produced, but evidence has been given, that, after the return of it, an indorsement in pencil mark was seen on it, in the following words, to wit, “ March 16th, 1832, levied on all the goods and chattels of the defendant at his book store, consisting of an assortment of books, fixtures, &c. Sheldon Potter, assignee.” When this indorsement was made, does ■not appear, whether on the 16th of March, 1832, or not. It appears from the deposition of Wendell, that the deputy sheriff was at the store on that day or the day preceding, and saw that portion of the goods which were in the store, but it does not appear that he was in any other part of the house, or saw any of the other goods at any time. If, however, he made the indorsement of seizure at the time he was at the store, and pursued it afterwards with reasonable diligence, it would be a good seizure of the goods in the store, but not •of the other goods. It does not purport to be a seizure of any other goods than those in the book store, and must be confined to that. -¡But if a seizure were made according to the purport óf this indorsement, on the 16th of March, 1832, is it not reasonable to suppose, that the sheriff or his deputy would have attended to it within a short time afterwards ? He was informed that the goods had been assigned for the benefit of the creditors of Porter, and- of course had reason to conclude that the assignee would dispose of them, if not taken from him, as soon as he could. The assignee accordingly did advertise the goods for sale on the 31st of March, and was then about to sell them, when Mr. Da.vis, the landlord of the assignor, distrain- ■ <ed upon them for rent. During thjs time no notice, that we hear of, was given to the assignee, by the sheriff or his deputy, of a levy upon the goods or any portion of them. Nor does it appear that any allegation to this effect was made by the sheriff pr his deputy until about the 7th of April; when it was claimed that the goods were levied on/ This delay and silence on the part of the sheriff, under the circumstances of this case, is, perhaps, sufficient to excite a suspicion, that no part of the goods were levied on until after the return of the writ oifi.fa. However, of this as a fact, I leave you to judge from the whole of the evidence. But beyond the goods in the store there is not even the eolour of evidence to show, that there was a levy. In regard to damages, the plaintiff only claims the amount for which the goods sold at sheriff’s sale with,interest thereon. So far as he Is entitled to recover, there is nothing unreasonable in this; less ought not to be given. If, however, you should be opinion, that the goods in the store were levied on, their price ought to be deducted, and your verdict be given for the price of the residue of the goods, with interest thereon from the time of sale to the present time. The •defendant cannot have an allowance made for the moneys paid to Mr. Davis, the'landlord; because as against the goods in the hands i®f Mr. Potter, the assignee, he had no claim whatever for rent. There was no'rent in arrear and due to him. It was only against the sheriff, in case he had made a seizure of the goods, while the ji. fa. was in force, and sold them afterwards, that he could have any claim for rent. This would also seem to have been the understanding of the parties; for the receipt of the landlord to the sheriff for the money, contains an engagement to refund it in case of a recovery against the sheriff.”
    Mr. Brashears, in support of the rule to show cause why a new trial should not be granted,
    contended, that the evidence showed that a levy was made on the 16th of March, and enough done according to the practice, to establish the lien of the sheriff: and that if the sheriff’s officer was prevented from proceeding further by the misrepresentation of the plaintiff’s agent, the plaintiff could not take advantage of the defect. . If the levy was good, the payment to the landlord was right, since by the decisions the rent is to be apportioned to the time of sale.
    Mr. W. M. Meredith, contra.
    The only question in this case waS one of fact, viz. whether there was an actual levy, which was decided b'y the jury in the negative. The evidence of Wendell was conclusive upon this point. The indorsement on the writ by the sheriff’s officer was not made at the time he went to the store, and there was no reason to believe, it was made before the 7th of April. Then there was no levy until after the return day, which certainly is too late. The defendant was not entitled to any deduction for the ■ rent paid to the landlord, since the quarter’s rent not being due until the 21st of April, he had no lien upon the goods at the time of the supposed levy.
   Per Curiam.

Whether there was a levy at all,, was a question properly left to the jury: and the fact, being found for the plaintiff, dispenses with the necessity of determining whether a levy of the effects in the room would have included effects in other parts of the building. If the direction was wrong in respect to that, it was without actual prejudice, and is not an assignable error. The finding disposes also'of the lien of the execution.

It is plain that the defendant was not entitled to an allowance for the payment to the landlord. But for the distress, followed immediately by. the sheriff’s seizure before rent had become due,' the assignee might have removed the goods without let or hindrance from any one — the object not being to elude the growing rent; and that they were detained on the premises till rent was incurred by an unlawful distress, and the sheriff’s seizure after the return day of the writ, could not justify the sheriff in paying, or the landlord in receiving. This .point also was properly disposed of.

Rule discharged and judgment on the verdict.  