Farrington v. Sinclair

Decided October 15, 1818

New York Supreme Court · decided 1818-10-15

<p>Where acredei°‘anVexécu" prope]iy°ofhis isting’ 0fCOná ponderousartioie not easily removable and allows it to continue in his possession, this is not, per se, ihe execution fraud’uimt^so property liable under a' ju.tior execution against the same debtor; but if the creditor permit the sume the proprewood,b™if suspfcion“d fof fraud; and to prove thefraud, the creditor in the junior execution may produce evidence of a permission given to the debtor to use other property levied upon at the same time.</p> <p>If the officer who made tne first levy, brings an action of trover against the parties who were engaged in the second levy, they may show circumstances of fraud to defeat the action, equally as if it had been brought by the creditor himself.</p>

Cited by 2 later decisions — most recently December 1867

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1818-10-15

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Per Curiam.

¶1The mere omission, for a few days, to remove the wood, it being a ponderous article, was not, per se, sufficient evidence'of fraud; but the permission given by Caswell, the creditor, to consume it for four fires, in Payne’s tavern, excited a just suspicion, that the proceeding was merely to cover the property; and after such a foundation was laid, the justice ought to have admitted the other evidence offered by the defendants below. It is no answer to say, that this was an action by the constable who levied, and that the fraud, if any, must be imputed to Caswell. If the real design of Caswell was to protect the property of Payne against other creditors, he shall not succeed in that attempt, by employing the constable as an instrument of his fraud.

¶2Judgment reversed.