Opinion by

The defendant in this case is bound by the judgment entered by the referee in the former suit against the sheriff, as to the *231questions there considered and passed upon. He acquiesced in the submission of the case to reference. He was called as a witness. He and his counsel were present at many if not all of the meetings. He filed exceptions to the referee’s findings. • While not in name a party to the litigation he had certain rights of intervention. These he exercised and is bound to the extent above indicated.

Had the present proceedings been on the bond and not to open a judgment on the bond entered by virtue of the warrant, the record of the judgment against the sheriff would have been proper evidence to show that the very thing had happened against the happening of which the bond was intended to be protection. But such a record would not be conclusive against the indemnitor who may show that the amount of the recovery there had “ was increased by reason of some fault of the sheriff for which the bond was not intended to secure him: ” Huzzard v. Nagle, 40 Pa. 178.

While it is true that some testimony was taken before the referee tending to show that the sheriff was instructed to sell not the goods levied upon but only the interest of the judgment debtor therein, the referee does not base his judgment upon any consideration of this testimony. He holds that the sheriff’s return to his writs, showing that the goods themselves were sold, is conclusive upon him.

From this it will be seen that the question whether the goods or the judgment debtor’s interest in them, were sold was not determined as a matter of fact.

The defendant in this case says that as between him and the sheriff this is still an open question and that the present application is the only means of raising it. He contends that the sheriff sold the goods after having been instructed to sell only the interest, that the damage was thus done by the sheriff himself and that the bond does not protect him.'

If the testimony bore out this statement of fact there might be merit in the contention. The evidence submitted, however, shows that the sheriff levied on the goods, and that title to them was claimed by a third party. The sheriff then required the bond of indemnity. On receiving it he sold the goods. He did not as in Dixon v. White Sewing Machine Co., 128 Pa. 397, alter his levy and sell only the interest.

*232The goods were bought iu by the present defendant, — the owner of the goods being present at the sale and the sheriff from the time of the levy until the sale being in possession. This gave a right to the owner of the goods to sue the sheriff in trespass: Welshv. Bell, 32 Pa. 12; Paxton v. Steckel, 2 Pa. 93; Freeman v. Apple, 99 Pa. 261, and fixed a liability on the bond in suit.

Furthermore the terms of the sale were not complied with. The sheriff was directed to resell, not the goods as before but (as contended) only the judgment debtor’s interest in them. This it is claimed was done. If done it was without notice to the owner of the goods. The successful bidder was again the present defendant or one in Iris interest. The sheriff remained in possession and subsequently delivered to the purchaser a bill of sale of the goods and their possession and made return of the sale of the goods upon his writ..

We are of opinion that the acceptance of the goods and of the bill of sale estops the defendant from asserting that the goods themselves were not in fact sold. The lower court has not on the facts presented, been shown to have so improperly exercised their discretionary power in refusing to open the judgment entered on the bond as to warrant a reversal of their order. The judgment is affirmed.