Berry v. Smith, 3 F. Cas. 290

Berry v. Smith

3 F. Cas. 290 | U.S. Circuit Court for the District of Pennsylvania | 1811

WASHINGTON, Circuit Justice,

delivered the opinion of the court.

In most of the cases to be found in the books where the execution first delivered has been postponed, as against purchasers and posterior executions, in consequence of delay in the due execution of the writ, the time has been so long as to warrant a presumption of a design to protect the property; which, in contemplation of law, amounts to a fraud, however innocent and even praiseworthy, on the ground of benevolence, the motive might be which induced it. For this reason, therefore, we frequently meet with expressions, in the opinions delivered in those cases, which lead to the conclusion, that the mere circumstance of time furnishes the principle which is to determine the question of fraud. This is a case in which this supposed principle must be examined, and its soundness decided upon; for, the vigilance of the creditor under the second execution, has been so great, as to leave the first creditor only three days and a little more, for the exercise of his intended indulgence to the debtor.

In the cases reported in the books, the delay has varied from six days, to one and two years1; — in this, it was shorter than the shortest of those periods, and if time be sufficient to govern the principle of decision, the court would look in vain to the light which these *292cases have shed on the subject, to enable us to distinguish the substantial difference, between a delay of three, and a delay of six days; for, it must be remarked, that in the cases referred to, the delay was produced by the order or consent of the creditor; and in all of them the motive was honest, though the intended effect was protection to the property, for a longer or a shorter time. If the principle is to be collected from the mere circumstance of time, it is a phantom whose shape will vary according to the different visions of the judges who examine it, and in reality, will exist only to perplex, and to render the law uncertain. Rejecting, therefore, the expressions of judges, which, unless they are understood in reference to the cases before them, are loose,’ and altogether unsatisfactory; let us see what is the solid and material principle, which has governed their decisions. It seems to the court, to be this;— that the end and object of an execution is, to obtain satisfaction of the debt for which it issued, and being delivered to the proper officer, it gives to the creditor a priority; because, the law points out to that officer his duty, which is to execute it without delay. In doing this, the property of the debtor is changed, and vests in the officer, for all the purposes of that execution. The change of possession, gives notice to all the world, of the real situation of the debtor, in relation to the property so seized, and prevents them from being deceived by the appearance of wealth, to which the debtor has no just pretensions. If the execution is delivered to the officer, with orders not to levy it at all, or until further orders, the purpose of the delivery is not answered, and all the legal consequences of the measure, in respect to creditors and purchasers, who would otherwise have been affected by it, are defeated. If the officer is ordered to levy on, but to leave the property with the owner, until he shall be otherwise directed, the party undoes, by such an order, all that the officer does by the seizure; — it works no change of the property; —it is no levy in respect to third persons. It is not necessary that the officer should remove the property, or even sell it immediately, if this be done in a reasonable time. But, he has effected nothing, if, by the plaintiff’s order, he leave the property with the debtor, to exercise every act of ownership over it, which he could have done before the seizure.

It will be perceived, that in laying down this principle, the court makes no distinction between a suspension for one day, or one or more months. The order of suspension deprives the act of the officer, in pursuance of it, of all its force and effect, until it is restored by a countermand; and if, in the mean time, a second execution is taken out and levied, the former must be postponed; — not so, if the second execution issues subsequent to such countermand; and upon this distinction, the decision of the case of Huber v. Schnell, [1 Browne, 15,] in the common pleas of this state, seems’ to be entirely correct.

The court is, for these reasons, of opinion, that Harold and Prosser are entitled to a preference of payment out of the sales of the property taken in execution.