Upon the facts establishing the validity of the sheriff's title and that the defendants, Brown Brothers, have the property or its proceeds, the bond might be disregarded and judgment rendered against these defendants in trover or assumpsit, by amendment, for all the plaintiff claims. But it seems to be considered of importance that judgment should also run against the surety upon the bond.
Counsel for the plaintiffs appear to have assumed that the true construction of the bond merely required the payment of any execution issued in a suit in favor of King Brothers against Thomas Karney and that as no execution has issued in favor of King Brothers, there had been no breach of the condition of the bond. Hence, this bill has been brought for the correction of the written evidence of the contract relied upon. But equity does. not interfere to correct an immaterial error, which does not affect the rights of the parties. Hence, the first question is whether the error in describing the plaintiffs in the suit in which the attachment was made prevents a recovery upon the bond. The error is an immaterial one. The parties adopted the procedure authorized for the restoration to the debtor of personal property held under attachment, P.S., c. 220, s. 26. Property so restored is still attachable upon subsequent writs as though it remained in the sheriff's possession. For that purpose it is deemed still in the custody of the officer. P.S., c. 220, s. 27, — hence the provision of the bond to pay to the sheriff the appraised value of the property or so much thereof as may be necessary to pay and satisfy any execution for the payment of which said property or its proceeds is or may be by law holden. The material question is, whether the goods for which the defendants gave bond are holden for the payment of a particular execution. The suit in which the original attachment is made is immaterial. The recital in this case by way of inducement sets out the claims of the parties. The Browns claimed the right of possession. Whether upon trial they proved such right by a prior mortgage from Thomas Karney or established the title in Karney and Lloyd from whom they had a mortgage would be of no importance. It is equally immaterial to the sheriff's claim to hold the property under attachment against Thomas Karney in whose favor the writ of attachment was issued, now that the title of Brown Brothers has failed. The facts entitling the plaintiff sheriff to recover upon the bond have been found and there should be judgment for him for the amount of the execution with interest.
Exception sustained: judgment for plaintiff.
All concurred. *Page 473