Storm v. Woods

¶1This case comes within the principle laid down and recognised by this court, in the case of Whipple v. Foot, (2 Johns. Rep. 422.) that if a creditor seize the goods of his debtor, on an execution, and suffer them to remain in his hands, the execution is deemed fraudulent and void, as against a subsequent execution. This rule has been long established in the English courts,(a) and is founded upon reasons best calculated to prevent fraud.

¶2So far as the facts disclosed at the trial were proper to be ' submitted to a jury, they must be understood to have been found b.y them. That the property was left in the possession of *113Milton, the debtor, after the pretended levy of the plaintiffs’ execution, is not denied, and that this was known to the assignees of the judgment, and acquiesced in by them, is clearly to be inferred from the case. In this situation the execution was permitted to remain for nearly a year; Hilton, the debtor, continuing in the possession of the property, using it as his own, in the same manner as he had previously done, and until the second execution came into the sheriff’s hands. Under these circumstances, the first execution ought to be considered as dormant, and postponed in favour of the second.

¶3Whether the sheriff is chargeable or not with neglect of duty, depends upon the fact, whether his conduct was known or approved of by the assignees of the judgment* and whether they knew in what manner the levy had been made, may be questionable* but that they did know that the property was left in the possession of Hilton, cannot admit of a doubt. No actual fraud was intended by them. They undoubtedly supposed they could postpone proceedings under their execution, until pressed on by younger ones, and still retain their priority. Motives of humanity might have influenced them to this indulgence ; still, it was not warranted by the sound and salutary principles of the common law. The case of Levy v. Wallis, (4 Dall. 167.) decided in the supreme court of Pennsylvania, which has been referred to, admits the English rule to be, as understood and recognised by this court; but, it is said, that sentiments of humanity, and the peculiar necessities of the country, has induced the court in Pennsylvania, to depart from it. In that state, however, the soundness of their own rule has been questioned, and much shaken in later cases. (See 4 Dall. 168. note (1).) The motion on the part of the defendant must be -denied.

¶4Motion denied, (a)