delivered the opinion of the court November 2d, 1885.
The plaintiff notified the sheriff that it had possession of thirty coal cars of the execution defendants, held as collateral security for a debt of 83,600, and would hold him liable as a trespasser if he levied on and sold the cars before payment of said debt. This was the only notice of claim, though the levy included seventy-six ears. The sheriff’s petition for an inter-pleader refers to an inventory annexed, and as the inventory lias not been printed, it will be presumed it was of the cars mentioned in the notice, and that the order awarding an issue was to determine the validity of the claim. As the case stood no other matter was involved in the dispute.
The claimant attempted to have the real issue appear in the pleadings, but the defendant in the issue moved that the first count “ be stricken out for impertinenev upon the ground that the Act of Assembly and rules of court contemplated an issue only when absolute property was claimed, and on the further *604ground that the rule of court prescribed the form of the narr. and how the issue should be made.” Of course the execution plaintiff denied the claim, else there would have been no issue.
Had he so directed, the sheriff would have sold the cars subject to the claim of the pledgee. Pleadings were ordered in the form prescribed by the rules of court, but the plaintiff having asserted a qualified property, the foundation of the sheriff’s prayer for interpleader, could not maintain the claim by proof of absolute property: Meyers v. Prentzell, 33 Pa. St., 482; Stewart & Co. v. Wilson, 42 Id., 450. Nor did the plaintiff propose to prove anything inconsistent with the claim made to the sheriff respecting the thirty cars, the subject of the issue. This is an equitable proceeding, and if the court, as regards die form of pleadings, had adopted an unbending rule, the claimant should not have been deprived of his qualified right of property for impertinency in offering to plead and prove just what was claimed. The evidence ought to have been received, and if it established the claim the verdict and judgment could have been so moulded as to protect the plaintiff’s rights.
It cannot be that the first count in the narr. was struck out on the ground that the statute 'contemplates an issue only when absolute property is claimed, for had the learned judge of the Common Pleas so construed the Statute he would have discharged the rule for interpleader. As appears in the charge to the jury, he well understood that the sheriff applied for an interpleader respecting the thirty cars only, and that the claim by the plaintiff to hold them as collateral security for a debt was all that had been made. The gist of the plaintiff’s complaint is, that the court ruled that he could not aver and prove a qualified right of property in the thirty cars. That ruling is the ground of all that followed, including the instruction to render “a verdict in favor of the defendant for the thirty cars, the title to which is now being tried.” Had the court permitted averment and proof of the actual claim of the plaintiff, doubtless, if sufficient evidence had been adduced, it would have been submitted with proper instructions.
This issue was not the claimant’s seeking. The sheriff prayed the' interpleader for his own protection. Perhaps it would have been better to have refused the prayer. But when the parties appeared in response to the rule, and joined in the issue ordered, a judgment against the claimant in that issue puts an end to the claim as against the execution creditor. A rule of court is not a legal bar to a claim which may be lawfully made, and were it a bar to the maintenance of a lawful claim in a sheriff's interpleader, the rule for interpleader should be discharged. The Statute is not designed to put a *605claimant into a hole where he can neither extricate himself nor be permitted, to prove his right.
Judgment was “entered on the verdict for the thirty cars, with costs of suit, without prejudice, however, to the rights of the Waverly Coal and Coke Company, set up iu their notice to the sheriff.” The verdict was against the claim set up iu that notice. Can the court attach a condition to the judgment on the verdict, that it shall be without prejudice to the very claim that was defeated ? If so, what has been accomplished by the trial and judgment? It leaves the parties where they stood before the issue was ordered. Then, why should the claimant pay the costs? The Statute makes it lawful for the court to direct an issue for the trial of questions of fact whenever the circumstances of the case require it. Unless the execution plaintiff disputed the plaintiff’s claim there was no reason for an issue, and the plaintiff ought not to pay costs on a judgment which leaves his claim as it stood when made.
We are of opinion that the court below rightly ruled that goods of a defendant pledged as security for a debt, may be levied on and sold subject to the rights and interest of the pledgee. The authority to so levy and sell is plainly given by section 28 of the Act of June 36th, 3886. And such levy and sale could be made before that enactment -as well as since: Srodes v. Caven, 3 Watts, 258; Meyers v. Prentzell, supra. The provisions of section 85 of the Act, as respects goods pawned or pledged, may be cumulative, but probably are intended for cases where the goods cannot be found by the officer. An attachment may reach goods in the hands of a garnishee, which the officer cannot discover.
The assignments of error will not be noted severally. They are sustained so far as inconsistent with this opinion. The fundamental error was the prohibiting of averment and proof of the actual claim.
Judgment reversed and venire facias de novo awarded.