Appeal, No. 230, Jan. T., 1894, by defendants, Howard F. Conrow et al., trading as Conrow Bros. & Co., from judgment of C. P. No. 1, Pbila. Co., Sept. T., 1890, No. 72, on verdict for plaintiff, Lewis M. Birch.

Trespass for wrongful use of civil process.

At the trial, before Biddle, J., it appeared that defendants had sold goods to S. R. Birch, who kept a store on Frankford avenue, Phila. Early in March, S. R. Birch transferred his store and its contents to plaintiff, who was his son. There was evidence that the father notified defendants that he had sold out to his son, and had no further connection with the business. Plaintiff testified that in response to a postal card he had called upon defendants after the sale, and that he had been requested by them to assume his father’s indebtedness. It was not denied that after the sale defendants sold and delivered to plaintiff various goods. Under objection and exception by plaintiff, one of the Conrow Brothers testified that, after they had received the letter from the father, the father called at their store, “ and he said that he made this transfer to the son simply to prevent a creditor pushing him, and to close him out to protect the other creditors; and that he would have some money for us the next day our young man would call.”

One of defendants testified that counsel had been consulted before execution was issued, and that all the facts of the case had been stated to him.

Defendants’ points were among others as follows:

“1. The record in the case of Conrow & Co. v. Sanford Birch, C. P. No. 1, June term, 1888, No. 364, offered in evidence by the plaintiff in this case, Lewis M. Birch, together with his testimony, shows, that he voluntarily appeared in said case under the sheriff’s rule for an interpleader, and voluntarily filed his narr and bond in said case and went to trial, and as there is no evidence in this case that the sheriff delayed unnecessarily in making application for the rule of interpleader, and no evidence that the plaintiff was deprived of the use of his goods, in any way, or that he was prevented from selling said goods, your verdict must be for the defendants.” Refused. [1] “ 3. If the jury believe that Sanford R. Birch, at the time of and before the alleged sale of these goods to his son, was largely indebted to the defendants in this ease and to other persons, and that the plaintiff in this case knew of that indebtedness, and that the said Sanford Birch, after the alleged transfer to his son, informed the defendants that the transfer was made to prevent one of his creditors from selling him out and was not a bona fide sale, the defendants were justified in making a levy upon that property on their judgment recovered against Sanford Birch in case of Conrow v. Birch, C. P. No. 1, June term, 1888, No. 364. Answer : That I refuse in the terms in which it is put.” [2]

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