5 Rawle 286 | Pa. | 1835
The opinion of the court was delivered by
If the plaintiff delivers an execution to the sheriff with direction not to levy at all, or not until further orders, it creates no lien on the defendant’s personal property as against a creditor issuing and proceeding with a subsequent execution. Com. v. Strembeck, 3 Rawle, 344. The rule is the same if there is a levy accompanied with instructions to stay proceedings. Ib. Hickman v. Caldwell, 4 Rawle, 376. In both cases the plaintiff’s object is considered to be to obtain security, not satisfaction for his debt, and the employment of an execution for this purpose is a perversion of its design, and a fraud against third persons. In the present instance, there was a levy on property left in the defendant’s hands by the request and at the risque of the plaintiffs. In this disposal of the property there was no harm, because by our usage it is not necessary to the validity of the execution that the sheriff should, either by himself, or another person, keep possession, as by the English practice he is bound to do. Com. v. Strembeck, 3 Rawle, 344. Watson on Sheriffs, 173, 176. He may leave the goods in the defendant’s possession at his own risk, or, if the plaintiff authorise it, at the risk of the plaintiff. Ibid. But still there must be a prosecution of the writ to a sale within a reasonable time. It is not necessary the sale should be before or even on the return of the writ. The sheriff may sell after the return of the writ, though out of office, and it is said, without a venditioni exponas. Ib. 189. But the plaintiff cannot suffer the levy to lie dormant term after term, and assert his priority only when another creditor attempts to enforce his rights. If he can, creditors may be kept at bay, the debtor permitted to retain the possession of the goods for an indefinite period, and the beneficial statutes and rules for the suppression of fraud frustrated. % The great length of time which elapsed in the present case after the levy, without any step being taken by the first execution creditor, warrants the presumption, that his object was to use the execution to secure his claim, and to prevent a sale of the goods for payment of the defendant’s debts — a design which the policy of the law deems fraudulent, and which renders the process void against the second execution creditor. The parol evidence abundantly manifests, that this, in fact, was the arrangement contemplated by the parties.
It is however, contended, that this case forms an exception to the general rule. And if it were shown, that Corlies & Co. knew of the first levy; that it was intended for their benefit by enabling the defendant to go on spinning cotton for their account; that they assented to the arrangement, and availed themselves of it, any objection to its validity would come with an ill grace from them. But the defence fails in the most important link of the chain. The evidence does not show that Corlies & Co. ever, agreed to the arrangement between Fletcher and Loud and the defendant. The most it proves is, that they knew of the existence of the execution
This view of the case renders it unnecessary to examine whether the issuing of the alias fieri facias to November term, 1829, and levy and inquisition thereon, was not in itself an abandonment of the levy on the personal property under the fieri facias.
Decree reversed, and money awarded to the payment in the first instance of the debt due to Corlies & Co.
