Farrington v. Caswell — 15 Johns. 430

Majority

p. 430

Farrington and Smith against Caswell.

Headnote

Where a party goods,S“ilv¡ea upon under an execution which he ^has them to remain skmirfhisdebtpnmafaáe ev¿en agaínstU<a ecutionUent eX

where the creditor in the prior execution, brings an action of trover against the parties engaged in levy^'under'a íion°theyXmay¡ f°audaprodace evidence that the plamtift permitted other property of the debtor, levied upon at the same time with that which is the subject of the action, to continue in his possession.

IN this case, the action was brought by Caswell, the crcditor in the prior execution mentioned in the two preceding, cases wi10 produced no evidence, at the trial in the court 7 r 7 below, to show why he had left the property in the possession of Payne. The defendants below offered, to prove, that the plaintiff gave liberty to Payne'1 s family to use other property levied on at the same time with that which was in question in the present action, in order to show that the purchase by the plaintiff of the property sold under his execution, was colourable and fraudulent. This evidence was . . excluded, and a verdict and judgment were given lor the deJ b fendant in error.

The continued possession of the goods in Fayne, was prima facie evidence of fraud, as against credi*ors j and here was no evidence to repel that presumption, The evidence offered by the defendants below was pertinent, and ought to have been submitted to the jury.

T 3 . , . . Judgment reversed.^[1]

(a) (a) Vide Whipple v. Foot, 2 Johns. Rep. 418 . Putnam v. Wyley, 8 Johns. Rep. 435 . Burnell v. Johnson, 9 Johns. Rep. 243 . Storm & Beckman v. Woods, 11 Johns. Rep. 110 . In Kidd v. Rawlinson, 1 Bos. & Pull. 59. (cited in Putnam v. Wyley, 8 Johns. Rep. 435 .) the purchaser under the fi. fa. was a third person, and not the creditor who issued the writs, and it was held, that his permitting the debtor to continue in possession of the goods, was not fraudulent, as respected another creditor, to whom the debtor afterwards assigned the same goods in payment. (S. C. 3 Esp. Rep 52.) And it has been held, that where the creditor himself purchased at the sheriff’s sale, and let the goods to the former owner, for a rent, which was actually paid, he had a title which could not be impugned as fraudulent by other creditors having executions against the same defendant. Watkins v. Birch and another, 4 Taunt. 323. But the circumstances of no money having been paid by the purchaser, under the execution, or rent by the lessee of the goods, are evidence of fraud to be left to the jury. Reed v. Blades and another, 5 Taunt. 212.