The opinion of the Court was delivered by
There is nothing in the first error assigned ; for Samuel Platt not being a freeholder and having n.eglected to enter bail upon the rendition of the judgmenfagainst him by the justice, the plaintiffs had a right to have execution immediately upon it, according to the express provisions of the sixth section of the act of assembly of 1810, extending the jurisdiction of justices of the peace to 100 dollars in such cases. And although it be provided also by the same section, that “ if the defendant within twenty days after such judgment shall enter special bail and pay the costs accrued on the execution, he shall (hen be entitled to an appeal or stay of execution, &c.yet it is evident that this latter provision is inapplicable to this case, because the execution was not only issued but completely executed before the entry of bail and payment of the costs on it by the defendant in the judgment. The bail was entered on the 29th of December 1835, but the boards were seized under the execution on the 10th of that month, and a regular sale was made by the constable on the 25lh of the same, four days before the entry of bail; so that it was impossible that there could be a stay of execution, after it had been completely executed. The sale of the boards then being perfectly legal and regular in every respect, the right of property in them, so far as it existed in the defendant in the execution at the time of seizure, became vested thereby in the purchasers : and it would be contrary to the whole policy, as well as every principle of analogy of the law, in regard to judicial sales of properly, to hold that any subsequent act, even of the court or tribunal whence the execution issued, and much more that of the defendant in it, could affect the right of the purchaser acquired under such sale. It may be, that where the plaintiff, in an execution sued out by him
Nor is there any thing wrong that we can perceive, in the charge of the court, assigned for the second error. For it cannot be questioned, that, according to the decisions of this court, it is now a settled rule, not to be controverted, in transferring and assigning personal property, that a transmutation of the possession must attend it, otherwise it may be avoided by the creditors of the assignor, as being fraudulent in law against them, though it may not have been intended to be so in fact by the parties. But it is complained of here, that the court below laid down this rule, as if it were universal and without any exception. This, however, was not intended by the court; and it would not be dealing fairly with what they have said in this respect, to give it such construction. It is obvious that the court only spoke of it as a general rule; but then the counsel for the plaintiff in error alleges that ihe court have stated the rule without mentioning any exception ; nor was it requisite that the court should do so, unless the plaintiff in,error, from the evidence, or at least some part thereof, given on the trial below, had entitled himself to have it submitted to the jury, as a question to be decided by them, under the direction of the court, whether his case did not fall within some exception to the rule. But as it does not appear that any evidence of the kind was given, it was clearly sufficient for the court to state the rule in general terms which prevailed and ought to govern on the subject. We therefore conceive that there is no error in what the court laid down on this point.
The third, fourth and sixth errors all relate to the same matter, on which the court charged the jury; and will therefore be considered as presenting the same question ; that is, whether, if the plaintiffs below, who are the defendants here, consented to the plaintiff in error’s taking the boards, the latter can be considered a trespasser in so doing, and liable to the recovery of damages in this form of action, which is trespass de bonis asportalis. The meaning of the court here is not expressed perhaps with as much perspicuity and precision as it might have been: but as I understand it, the court, in effect, instructed the jury, that if the boards were owned by the plaintiffs below, and the defendant came to the place where the boards were in the possession of the plaintiffs, with a determination to carry them away whether the plaintiffs were willing or not, and the persons in the employment of the defendant commenced clearing the snow off the boards by turning them, under his direction, with the intent to carry them away, the plaintiffs below were equitably entitled to recover in this form of action, notwithstanding the jury should be of opinion that they came to an agreement with the defendant, at the time the boards were taken and removed, that the defendant should
The fifth error, which is the only remaining one, raises a question not at all material to the determination of this action : because, if the evidence of (he reference to Judge Herrick be accredited, it also establishes that, in pursuance of the same agreement between the parties, whereby the question of property in the boards was referred to Judge Herrick, the plaintiffs below gave up the possession of them to the defendant, which, as has been shown above, leaves them without even the shadow of a pretence for the support of this form of action.
The judgment is therefore reversed, and a venire de novo awarded.