3 Rawle 341 | Pa. | 1832
The opinion of - the court, which contains a statement of all the material facts, was delivered by
This was a scire facias on a sheriff’s recognizance. The plaintiff assigns for breach of the recognizánce, that the sheriff did not, according to law, well and truly execute all writs and process of the Commonwealth, to him directed, in this, that he refuged to execute a writ of fieri facias, which had issued at the suit of William Reynolds against a certain Aaron Clements. The facts, so far as they are at present material, were as follows. To the March term, 1828, William Reynolds obtained a judgment against Aaron Clements for two thousand four hundred and .forty-seven dollars, and forty-seven cents, on a bond, with a warrant of attorney,- conditioned for the payment of one thousand and seventy-three dollars, and seventy-four cents. A fi. fa. was issued to the June term, 1'828, which was delivered to the sheriff on the first of April,1828. On the 10th of April, 1828, the sheriff’s deputy made this memorandum, which he attached to the writ, “ Levied on all the goods and chattels of Aaron Clements, now in his possession at the sign of the Indian Queen, South Fourth Street, consisting of a variety of household and kitchen furniture, together with a quantity of liquors and bar furniture.”
It appeared in evidence, that the judgment was entered, and the execution issued in consequence of Clements’ default in the payment of an instalment of two hundred dollars a year, which he had agreed to pay in liquidation of the debt. After the levy Clements called on
“ Sir, — Please to stay proceedings until further orders. Levy to remain.
“ Phila. 14 April, 1828. yours,
Charles Wheeler.”
These notes, viz. the notes for one hundred dollars each, were duly paid; but in the following year Clements had to pay' another sum of two hundred dollars, arising out of the same transaction, for which he again gave two notes,, which have not been paid. After failure of payment, a bond of indemnity, dated the 29th May, 1829, was delivered to the sheriff, and Mr. Wheeler gave him, first a verbal, and then a written order, dated the 11th June, 1829, to proceed on the fa.fi. issued on Reynolds’ judgment. The sheriff refused to execute the writ, alleging that the levy had remained too long; that there was an order to stay proceedings, and that there had been an assignment to assignees, who were entitled .to the property.
Clements executed two assignments in trust for cértain specified creditors. One dated the 3d of May, 1826, to Benjamin S. Bonsall, Thomas Cooper and Charles Champion. The other dated the 13th of May, 1829, to Peter Wager and Benjamin S. Bonsall. On the second assignment, an inventory.was filed, and a bond given according to the directions of the act.
The plaintiff asks for a new trial on the ground of misdirection in the charge to the jury in this, that if the second assignment was good, it was of no manner of consequence, whether the assignees, or those claiming under them, had or had not notice of Reynolds’ execution and levy, because of the order to stay proceedings’; that .the direction for the levy to remain, would be of no effect against them.
2. That the lien of Reynolds’ execution was waived in favour of Palmer's execution, by reason of the order to stay proceedings, notwithstanding the direction for the levy to remain.
As both points involve the same principles, the correctness of the charge, might be rested on the effect of the order to stay proceedings, but I think it proper to notice some other matters connected with the case. The levy was made on the 10th of April, 1828, and it was not until the 30th of May, 1829, that Mr. Wheeler gave a verbal order, and on the 11th of June, 1829, a written order to proceed, so that for thirteen or fourteen months, the goods were suffered to remain in the possession of Clements, without any step having been taken to effect a sale. In England the practice is to remove the goods, and the fact, that they are not removed, is a badge of" fraud, so as to render them liable to a subsequent execution, or to pass into the hands of a purchaser, discharged from the lien of the execution creditor. In this state we have departed from the strictness of the
I will now consider the effect of the order to stay proceedings, the levy to remain. As between Clements and the execution creditor
It has been seen, that in Pennsylvania it is not necessary that the Officer should remove the property, nor put a person in change of the goods, nor sell them immediately, if this be done in a reasonable time. I would not, however, think it safe for creditors, at this day, when the condition of the country has so materially changed, to .permit the levy to remain without sale of the goods, or some person having them in charge, so long a time as would seem to be authorised by the earlier cases. Here the Judge, who tried the cause, left it as a fact for the decision of the jury, whether this transaction was intended as a security for the debt, and it would be difficult to imagine, how the jury could have come to a different conclusion from that which they did. It is manifest that the levy was to remain in the nature of a security for the debt.
Motion for a new trial overruled, and judgment on the verdict.