Majority
p. 143*DECEMBER TERM, 1799. Levy v. Wallis.
Syllabus
Presumption of fraud.The act of suffering goods to remain in the hands of the defendant, after they have been levied on, furnishes no presumption of fraud; but if the intention of leaving them is fraudulent, a subsequent execution will be preferred.[1]
In this case, a testatimfi.fa. issued on the 27th of December 1798,returna-ble to March term 1799, which was levied on twelve horses. A venditioni
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exponas issued to September term 1799 ; and an alias vend. exp. issued to December term 1799. On the last writ, the sheriff returned, that he had sold the horses to the amount of $1021; that Thomas Hamilton had bought seven of the horses for $630 ; but that, both before and after the sale, he had given written notice, that he claimed the money arising on the sales, by virtue of a levy previously made for him, upon an execution, by the former sheriff : and that, therefore, he claimed to retain the amount of his purchases, in part satisfaction of his execution; and the remaining money of the sales aforesaid, the said sheriff has ready, &e.
From the records, it appeared, that Hamilton had issued a fi. fa. against Wallis, on the 25th of January, returnable to March term 1798, which was levied (inter alia) upon seven horses; and that on the 11th of December 1798, a vend. exp. issued, but was never prosecuted.
It also appeared, that in the case of Perit, executor, v. Wallis, a testatum fi. fa. had issued to March term 1797, which was levied (inter alia) upon seven horses ; that a vend. exp. issued; that an alias vend. exp. issued to September term 1798, on which the sales were put off, at the risk of the plaintiff ; and that apluries vend. exp. issued to September term 1799.
The general question was, whether the prior execution-creditors, Hamilton and Perit, had not lost their liens, by allowing the property levied upon to remain in the hands of the defendant ?
that it had been repeatedly determined, and was become the settled law of Pennsylvania, that the act of ^suffering -* goods to remain in the hands of the defendant,- after they were levied upon, furnished no presumption of fraud here; as it did in England; and that
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this departure from the English rule arose from sentiments of humanity, and the peculiar necessities of the country. In the interior of the state, particularly, it was the universal practice not to remove the goods, after a levy. If, however, the intention of leaving them with the defendant was fraudulent, a subsequent execution would be preferred, in Pennsylvania, as well as in England. In the present instance, there is no proof of fraud; the first levies are, of course, good; and the sheriff must pay the money arising from the sales accordingly.[1]
Footnotes
- 1 But see Keyser’s Appeal, 13 Penn. St. 412 , where it is said by Rogees, J,, that although there is an appearance of contradiction, in the dicta of some of the judges, yet, it is the rule in this state, that merely leaving the property in possession of the defendant, though with the plaintiff’s consent, is not per se fraudulent. Thp rule is, if goods be left in defendant’s possession, even with the plaintiff’s permission, the lien is not lost, unless there be fraud.