15 Johns. 428 | N.Y. Sup. Ct. | 1818
The mere omission, for a few days, to remove the wood, it being a ponderous article, was not, per se, sufficient evidence'of fraud; but the permission given by Caswell, the creditor, to consume it for four fires, in Payne’s tavern, excited a just suspicion, that the proceeding was merely to cover the property; and after such a foundation was laid, the justice ought to have admitted the other evidence offered by the defendants below. It is no answer to say, that this was an action by the constable who levied, and that the fraud, if any, must be imputed to Caswell. If the real design of Caswell was to protect the property of Payne against other creditors, he shall not succeed in that attempt, by employing the constable as an instrument of his fraud.
Judgment reversed.