3 Sadler 318 | Pa. | 1886
Opinion by
This action of trespass was brought by Morris Berger against Snyder and Jacoby, plaintiffs in error, to recover the value of a horse sold on a constable’s execution as the property of Edward Shafer, together with damages for the seizure and detention of another horse and a wagon, all of which he claimed were his property at the time of the alleged trespass.
It is conceded that prior to December 3, 1883, the horses and wagon belonged to Shafer. On the following day, by virtue of proceedings under the fraudulent debtors’ act of 1842, instituted by J acoby against Shafer, the horses and wagon were attached and the case was so proceeded in before the justice of the peace that judgment was rendered in favor of the plaintiff in the attachment; and subsequently Snyder, by virtue of an execution,, issued on the judgment and directed to him as constable, sold one of the horses.
The only defense set up before the justice was want of jurisdiction. On that question the case was before us and the judgment of the justice was affirmed. Jacoby v. Shafer, 105 Pa. 610.
As against Shafer it was definitively settled in that case that he was indebted to Jacoby in the sum for which judgment was-entered, and that he was about to assign and dispose of his personal property with intent to defraud his creditors. That judgment- is final and conclusive as to the facts necessarily adjudicated, aud cannot be impeached except for fraud, in this or any other proceeding. But Berger, the plaintiff below in this case, was not a party to that suit, and therefore not precluded from showing what he alleged, viz., that in good faith and for a full consideration he purchased and had exclusive possession of the horses and wagon the day before the attachment issued.
In connection with other evidence tending to impeach the bona tides of Berger’s alleged purchase of tire horses and wagon, the circumstances recited in the offer covered by the third specification were proper for the consideration of the jury. While it is true that fraud is never to be presumed, but must always be proved, great latitude is allowed in the admission of testimony that may serve to shed light on the alleged fraudulent transaction.
What was said by the learned judge in that part of his charge specified in the fourth assignment of error was doubtless intended to apply to a bona fide purchase, untainted by actual fraud. He was then speaking to the subject of transfer of possession from the vendor to the vendee. The jury doubtless so regarded it. Thus understood, what was said by him was not objectionable.
The subjects of complaint in the fifth and sixth specifications, are: instructing the jury that there was no evidence of actual fraud on the part of the plaintiffs below, and withdrawing that subject from their consideration. In that we think there was error. An examination of the testimony satisfies us that facts and circumstances proper for the consideration of the jury on the question of actual fraud, on the part of both the alleged vendor and the vendee, were testified to by several witnesses. Indeed, the transaction between Shafer and defendant in error, especially the conduct of the latter, was more than suspicious.
There was no error in refusing to affirm defendant’s second point as presented.
Judgment reversed and a venire facias de novo awarded.
