7 Watts 305 | Pa. | 1838
The opinion of the Court was delivered by
The plaintiffs in replevin claim title to the property by virtue of a purchase at a sheriff’s sale on executions issued on two judgments in their name against a certain Jesse Carman. The defendant, who was a subsequent execution creditor, denies the plaintiffs’title on three grou'nds: 1. That there was fraud and collusion between the plaintiffs and Carman to hinder, delay and defraud creditors; 2. That the judgments were paid ; and 3. That the property was sold on five days’ notice, without his consent.
To sustain the two first allegations, certain testimony was offered which was rejected by the court. Of this the defendant complains. The first and third bills depend on the same principle. It appears in evidence that the property was suffered to remain in the possession of the debtor until Gibbs issued his execution and was about to sell in satisfaction of his debt. That then Carman applied to Neely’s agent to issue a venditioni, which was done; and by agreement of the parties, the property was sold by the sheriff on five days’ notice, with the evident design to anticipate the sale of the goods on the execution of Gibbs. Before the sale, the goods on which the levy was made were used and disposed of by Carman, with, there is reason
We are of opinion there was error in rejecting the evidence contained in the second and fourth bills.
The least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all; and the acts and declarations of one may be given in evidence to affect the others. Rogers v. Hall, 4 Watts 359. A concert of action for a fraudulent purpose was shown, at least some evidence was given which tended to prove it; and this makes Carman’s acts and declarations evidence against Neely, so as to make it the duty of the court to refer the whole matter to the jury. Besides, in the fourth bill, the question was put to Carman himself, who was examined as a witness for the plaintiff, as to what he had said in relation to the execution on which the sheriff had levied, and what had become of the clock sold at the sheriff’s sale. We cannot anticipate what would have been his reply, but if he had said that he still retained them after the sale, this would have been corroborative evidence of a fraudulent combination between him and the plaintiff.
But the third point is still more material.
The facts are undisputed that the plaintiff and defendant had liens on the property by virtue of their respective executions. The property was sold at five days’ notice, with the assent of the debtor, but
Judgment reversed.