delivered the opinion of the court,
The procedings under the Interpleader Act, resulting in a verdict and judgment in favor of the plaintiff, conclusively established his title to the goods seized by the sheriff as the property of Zacharias & Co., on the execution of the bank against that firm. In the present action against the sheriff and execution-creditor for the wrongful seizure and sale of the goods, the question is whether the defendants were protected by those proceedings, and if so, to what extent.
The learned president of the Common Pleas being of opinion that the main facts, admitted by the pleadings, presented a question of law for his decision, held that the proceedings were a complete protection to both defendants, and a bar to the action of trespass. He accordingly entered judgment against the plaintiff; and this has been assigned for error.
The Interpleader Act, as appears by the preamble, was designed for the relief of the sheriff, and intended to exempt him from the hazard and expense of actions that might otherwise be brought against him by person, sclaiming the goods upon which he had levied, who were not parties against whom the process issued. There is nothing in the act which makes it imperative on the court to grant an issue when applied for by the sheriff. Its award or refusal is not a matter of right, but of sound discretion, under all the circumstances of the case. No provision is made for a writ of error, whether the issue is granted or refused: Bain v. Funk, 11 P. F. Smith 185.
It was never intended by the framers of the act that the sheriff, b.y direction of the execution-creditor, and under the shield of indemnity furnished by him,-might seize and hold the goods of a stranger until he saw fit to institute proceedings under the Inter-pleader Act, and in the end, after the claimant succeeded in estab*291lishing his title to the goods, invoke these proceedings as a complete protection against the demands of the injured party, based on acts of trespass committed before the proceedings were commenced. Such a construction of the act was never contemplated; nor is the sheriff required to incur any such risk. In Day v. Carr, 7 Exch. 883, it is said, “ In many cases he will be justified in applying to the court before he perils himself by an actual seizure, under circumstances which might perhaps subject him not only to an action for the value of the goods, but also for damages for taking them.” After quoting this sentence with approbation, the present chief justice, in Phillips v. Reagan, 25 P. F. Smith 381, says, “ There is great reason, when the goods of one man may be taken under an execution against another, why an actual levy should not be necessary. Every purpose of the act may be accomplished without it. Especially is this so when the goods are in the actual possession, not of the defendant in the execution, but of an adverse claimant. A very serious injury might be done to such a party by closing his store and putting a watchman in charge, even for the short period of time necessary to procure- the order of court for the interpleader.”
Our act is made even broader than the English statute, from which it appears to have been copied, by substituting the word “ entitled ” for the word “ intended.” It provides that the sheriff may apply to the court or a judge at chambers for a rule on the parties whenever adverse claim has been or shall .be made to any goods or chattels taken, or “ entitled to be taken in execution.”
In the present case, the sheriff found the goods in the possession of the plaintiff; knew that he had advertised them for sale, and was fully notified of his claim as owner. Under these circumstances he was not required to incur the risk of an actual levy and seizure of the goods. He might have presented his petition to the court or judge at chambers, setting forth the facts and asking a rule on the parties. If the court thought proper to entertain the application, it had full power to make all necessary orders in the premises. The sheriff might thus have acted from the beginning under the protection of the court, without committing any actual trespass; but instead of doing so, he disregarded the plaintiff’s claim, levied on and took possession of the goods, on November 15th 1877. Although his petition for the rule on the parties is dated six days thereafter, it was not presented until the fourth day of December following. In the absence of explanation this delay was uncalled for. When the court was applied to it acted promptly in granting the rule, and subsequently, in awarding the issue; but no other order was either made or applied for. All that took place subsequently to the granting of the rule appears to have been done under the direction of the court, and for everything ,so done, the sheriff may justly claim protection and plead the fact in justifica*292tion; buffer anything done before his petition was presented, he is not within the protection of the act.
' The extent of the protection afforded by the English Interpleader Statute, which is almost identical with our own, was discussed in Walker v. Olding, 1 H. & C. 621, in which Pollock, C. B. says: “We think the plaintiff is entitled to damages only up to the time of the interpleader order. The verdict establishes that the defendants are trespassers and wrongdoers, as stated in the declaration, and the only question is, what is the damage caused to the plaintiff by the trespasses and wrongful acts so established'( Now, up to the time of interpleader order, all the damage sustained by the plaintiff is caused by the defendants, who, up to that time, are with the sheriff joint.trespassers and wrongdoers. But, on the making of the interpleader order the case is different.”
The bank was not responsible for anything done by the sheriff, unless he acted by its direction. It is very clear, however, that if it indemnified the sheriff and directed the seizure of plaintiff’s goods as averred in the pleading, it is liable to the same extent, at least, as the sheriff; but, we are of opinion that both defendants are fully protected by the interpleader proceedings in all that was done in pursuance thereof or under the direction of the court. The act provides a mode by which the title to personal property, and consequently its liability to execution ás between the claimant and execution-creditor may be judicially determined; and, in the absence of proper averment and proof of malicious abuse of civil process, the parties to the proceeding cannot be considered trespassers while pursuing, in good faith, the remedy provided by law.
Upon the facts of the case, as presented, we are of opinion that neither of the defendants can justify under the Interpleader Act for anything done prior to the inception of the proceedings thereunder, but so far as they or either of them afterwards acted under the ■direction of the court, or in accordance with the interpleader proceedings, they are entitled to claim protection.
Judgment reversed, and a procedendo awarded. ■