This action was by a sheriff against the defendant in an execution and the claimant of the property levied on to recover damages for the unlawful removal of the property without the knowledge or consent of the sheriff, and with the intent to prevent its sale. The property levied on consisted of horses, mules and wagons used by contractors. The defense was that the claimant of the property notified the deputy sheriff who made the levy of her claim of ownership and asked for an interpleader; that with his knowledge and consent and for the purpose of providing for the expense of keeping the horses and mules, she hired them to a paving company for use in an adjoining state and kept him informed where they were; that upon her failure to secure an interpleader, because of her inability to procure a bondsman, she had the property returned and had it present at the time and place fixed for sale, except two mules that had died and for which others were substituted; that she was prepared to bid at the sale the full amount of the judgment and that the deputy refused to go on with the sale unless she would agree not to rule the money into court and would allow it to be paid by the sheriff to the execution creditor. The issue raised by the pleadings was submitted with clear and adequate instructions and the jury found for the defendant.
The right of action for the unlawful removal of property under levy was in the sheriff, and the execution creditor, to whose use the action was brought, had no standing except upon his right. If the deputy sheriff who had charge of the writ made the claimant his bailee and agreed to the removal and use of the property and it was returned for sale as agreed upon, the sheriff suffered no injury and as to him the claimant did no actionable wrong.
The instruction by the learned trial judge, that a joint tort having been alleged, there could not be a recovery without proof of á wrongful act, in which both .defend*398ants participated was correct. “In a suit for a joint tort there should be no recovery on proof of one or more separate torts. Where a joint tort is alleged, a joint tort must be proved, in order to sustain the action. The allegation and the proof must agree in cases of tort as in other cases”: Weist v. Traction Co., 200 Pa. 148.
The judgment is affirmed.