¶1On May 1, 1926, the plaintiff issued an attachment under the Fraudulent Debtors’ Act of March 17, 1869, P. L. 8, against Robert White, and the sheriff attached thereunder certain waste, as the property of White, in the possession of Dixon Waste Company, who was summoned as garnishee.
¶2On May 4, 1926, Alexander G. Wilson, without notice to the plaintiff, presented a petition, alleging that he was the owner of the waste; that the defendant had no interest in it, and prayed for the dissolution of the attachment and leave to intervene as a party defendant upon the entry of security.
¶3On the same day, the court granted the prayer of the petition, dissolved the attachment upon the entry of security in the sum of $9317.94, and granted leave to Wilson to intervene as a party defendant.
¶4The petition appears to have been rather hastily prepared, and really fails to show, as the plaintiff points out, that the waste belonged to Wilson. If Wilson was the owner of the waste at the time it was attached, his remedy was by a claim of property and a sheriff’s interpleader to determine title: Troubat and Haly’s Practice (Brightly’s Edition), 201, and Act of May 26, 1897, P. L. 95.
¶5The Act of 1869 limits the right to dissolve to the defendant alone. Section 3 provides: “It shall be the duty of the officer serving such attachment to take the property attached into his possession, when the same is capable of manual seizure, and when not, the same shall be bound by such attachment in the hands or possession of such party from whom it is due or owing, or whose duty it is to account for the same, unless the party defendant, or some one for him, her or them, shall enter into a bond, with sufficient surety, to be *114approved by the court from which said attachment shall issue, or the prothonotary thereof, in, double the amount of the debt or demand claimed, conditioned that in the event of the plaintiff or plaintiffs recovering judgment in said attachment, that he, she or they will pay the debt and costs at the expiration of the stay of execution on sums of like amount given to freeholders, or that he, she or they will surrender up the said property in as good condition as when attached to any officer having an execution against said party defendant on any judgment rendered in said attachment in favor of the plaintiff.”
¶6Wilson, as claimant, therefore, had no right to have the attachment dissolved, and the courts have uniformly so ruled: Rosenbloom v. Boggs, 2 Blair Co. Law Repr. 200; Morris v. Dougherty, 10 Luzerne Legal Reg. Rep. 298; Williamson v. Bokropis, 7 Pa. C. C. Reps. 270; Yost v. Ginley, 2 Schuyl. Legal Rec. 347, and White v. Mullen, 1 Legal Opinion, 201.
¶7There is no suggestion or contention that the defendant was in any way concerned in the dissolution of the attachment.
¶8With the provisions of the Act of 1869 so clear and explicit as to the remedy of a claimant, it is difficult to understand how counsel either overlooked or misunderstood the act. The mistake has been made and the attachment was improvidently dissolved.
¶9Later, the plaintiff filed a statement of claim against the defendant, and in due course entered a judgment against him for want of an affidavit of defence for some $5000, and then issued a scire facias on the bond entered by Wilson, the claimant, when the attachment was dissolved.
¶10Instead of filing an affidavit of defence to the sdre facias, Wilson has presented a petition for an issue to determine the ownership of the waste and a stay of proceedings on the scire facias.
¶11The matter now before the court is Wilson’s petition for an issue.
¶12The situation is somewhat anomalous, and about what one should expect where the plain directions of an act of assembly have been either ignored or misapprehended.
¶13What are the rights of the parties and how can they be worked out?
¶14If the waste really belonged to Wilson, it would be neither fair nor just to permit the plaintiff to recover some $5000 against him through a mistake or oversight of counsel; and if the waste belonged to the defendant, Wilson should not be liable for more than its value.
¶15What are the plaintiff’s rights under the bond?
¶16The bond is as follows:
“Know all men by these presents, that on the fourth day of May, A. D. 1926, Alexander G. Wilson and Willis B. Heidinger are held and firmly bound unto William V. Burleigh in the sum of nine thousand three hundred seventeen and 94/100 Dollars, lawful money of the United States of America, to be paid to the said William V. Burleigh, to which payment well and truly to be made, we do bind ourselves, our heirs, executors, administrators, assigns and our successors jointly, severally and firmly by these presents.
“The condition of this obligation is such that if the said William Y. Burleigh fails to maintain the herein entitled suit and judgment is entered against them, then this obligation to be void, otherwise to be and remain in full force and virtue.”
¶17The defendant is not a party to the bond.
¶18Wilson did not obligate himself to pay the bond if the plaintiff obtained judgment against the defendant; the condition of the bond is that the plaintiff shall obtain judgment against Wilson. There is no suggestion that any *115such judgment has been entered. The plaintiff’s prsecipe for the scire facias shows no breach of the condition of the bond, and Wilson and his surety should file an affidavit of defence to the scire facias setting up this defence.
¶19If the plaintiff moves to strike off the decree dissolving the attachment, then Wilson and his surety would be discharged from their bond. It may be, under such circumstances, Wilson would be liable in tort, but his liability would be limited to the defendant’s interest in the waste; and if the defendant had no interest, the plaintiff was not harmed by the dissolution of the attachment. There is no disposition on the part of Wilson or his surety to escape liability if the defendant owned the waste, and they frankly state they understood at the time they executed the bond it was to protect the plaintiff should he establish that the waste belonged to the defendant.
¶20We think the interpretation of the bond as urged by Wilson’s counsel is reasonable and sensible. By granting Wilson’s petition for an issue, the ownership of the waste can be determined. If the plaintiff succeeds in that issue, there will be a breach of Wilson’s bond, and Wilson and his surety will be liable to the plaintiff for the value of the waste. The only practical difference that occurs to us between a sheriff’s interpleader and an issue framed under Wilson’s petition is that the plaintiff will be obliged to prove the value of the waste which, in a sheriff’s interpleader, is fixed in advance by the sheriff’s appraisement. Experience shows that an execution creditor in interpleader is always at an advantage if he is not limited as to value by the sheriff’s appraisement.
¶21Such an appraisement is invariably too low rather than too high. We can conceive of no real disadvantage to the plaintiff by any step mistakenly taken by counsel for Wilson.
¶22The plaintiff contends that Wilson’s petition for an issue and his depositions do not show he was the owner of the waste. We have carefully read the petition and the depositions.
¶23It is not quite clear that Wilson was the owner of the waste at the time of the attachment. Wilson’s sale to the Dixon Waste Company prior to the attachment would ordinarily vest title in the Dixon Waste Company. We are without definite information as to the terms of sale or what right the Dixon Waste Company had to rescind the sale, because the waste was attached as the property of the defendant. The Dixon Waste Company had not paid for the waste at the time of the attachment.
¶24Whatever the conventional rule may be as to the passing of title between seller and buyer, we have no doubt that a seller may relieve his purchaser from his contract where the goods, before payment, have been attached as the property of a third person. Such a cancellation could not prejudice the plaintiff, so long as the defendant had no interest. The depositions show that the Dixon Waste Company rescinded the sale and refused to pay. In fact, what else could Wilson do but accept a rescission? Naturally, the Dixon Waste Company, who had not paid for the waste, refused to be involved in litigation and obliged to enter security for goods without knowing whether they really belonged to Wilson or the defendant. There was no other person but Wilson sufficiently interested to protect the waste against the defendant’s creditors. If Wilson accepted a rescission of the contract, he became the owner and had an owner’s right to protect his goods against the creditors of the defendant.
¶25The title to the goods should not be tried on petition for an interpleader: Book v. Sharpe, 189 Pa. 44, and McKinley v. Mutual Life Ins. Co., 278 Pa. 300.
¶26The facts and circumstances of this case are such that we feel Wilson should have an opportunity to present his ease.
¶27*116The only evidence ox the value of the waste is the price at which it was sold by the Dixon Waste Company to Churchville, and that was $1900.
¶28It is true there is no statutory authority for the bond entered by Wilson, yet we may regard it as a voluntary bond, and Wilson and his surety are liable on it, according to its terms: City of Philadelphia v. Shallcross, 14 Phila. 135; Clement v. Courtright, 9 Pa. Superior Ct. 45; Claasen v. Shaw, 5 Watts, 468, and Koons v. Seward, 8 Watts, 388.
¶29And now, to wit, July 26, 1926, the petition of Alexander G. Wilson for an issue to determine the title to the waste levied upon by the writ of attachment in the above ease is granted, and it is ordered that an issue be framed, wherein the said Alexander G. Wilson shall be plaintiff and William J. Burleigh, the plaintiff, shall be defendant.
¶30And it is further ordered and decreed that the bond heretofore entered by Wilson shall be taken and considered as security to the plaintiff for the value of the waste, if it be determined in the issue to be framed that the said waste was not the property of Wilson; and Wilson and his surety shall, within ten days, by writing filed of record agree and consent to this decree.
¶31It is further ordered that Alexander G. Wilson and Willis B. Heidinger be granted leave to file an affidavit of defence to the scire facias issued on their bond in the above case within fifteen days.