The opinion of the court was delivered by
Rogers, J.— The declaration contains three counts, on two of which at least, the second and third, the plaintiffs are entitled to judgment. The second is for' a false return, the third for refusing or neglecting to sell the goods levied on, the constable having accepted an indemnity. It is in full proof that an execution was put into the hands of the defendant, who was a constable, by the justice, and that a short time afterwards, he said he had levied, but that some person had claimed the property. A bond of indemnity was then given to him, at his request, which he accepted, expressing himself satisfied therewith. Notwithstanding which, the constable made the following false return: “ Returned for want of sufficient indemnification.” On this undisputed state of facts, the court ruled that if the jury were satisfied from the evidence that the defendant, after making his levy, demanded indemnity, before proceeding to the further execution of his writ, that such indemnity was given to him with which he was satisfied, he was bound to proceed to sell the goods levied upon in satisfaction of the debt, and his neglect or omission to do so rendered him responsible to the plaintiffs for *513tbe amount of tbe execution, whicb is the demand in this case. If, as the constable said, property in the goods was claimed by another, he was not bound to proceed, unless sufficient indemnity was given; but having demanded and accepted indemnity, the situation of affairs is entirely altered. He is compelled on his part to proceed to a sale of the goods, and must look to his bond for indemnity. The constable is estopped from showing that the goods belonged to another. As between the plaintiff and the constable, it must be taken to be the property of the defendant in the execution: Fitler v. Fossard, 7 Barr 541; Hall v. Galbraith, 8 Watts 220; Miller v. Com., 5 Barr 294; Watmough v. Francis, 7 Barr 215. So that even admitting what is denied, that the court charged that it was not material whether the property Corson levied on was Sausman’s, yet we perceive no error.
It is however said, the court erred in charging that the plaintiff was entitled to recover to the extent of his demand. That there is an inaccuracy in the language of the judge must be admitted ; for the measure of damages is not always the amount of the execution, but the value of the property levied, when it does not equal the amount of the debt. This furnishes the true rule. But the presumption here is that the value of the goods was at least equal to the amount claimed in the execution. That seems not to have been questioned, and if so, no injury was done to the defendant. This court reverses for real, not imaginary or possible injuries.
The defendant contends the narr. is defective in not showing that the alderman had jurisdiction in the case in which he issued execution.
That the narr. is so defective as not to stand the test of a general or special demurrer may be admitted; but yet, in Pennsylvania, it is a defect which is cured by verdict. It would be a waste ofi time to examine the decisions of other courts in other States, om questions of amendment. We have a system of our own, depending on our own statutes, which have always received a liberal construction. The rule I take to be this, that whenever the defect im the declaration, &c., is such as would be amended in the court before whom the trial is had, it is cured by verdict. The court uniformly considers the error as waived. We consider that as done which might have been done. It will be remarked that the defect-here, is not that the alderman had no jurisdiction, but that the-declaration contains no averment that he had jurisdiction. This is-a defect in form, which would have been immediately amended by the Court of Common Pleas, had their attention been called to it.
Judgment affirmed.