Shannon v. Commonwealth ex rel. Lazarus

on^a Sheriff’s* official bond, ¡mayPassignff ofthe'coníi63 tion of tu« jury isswom.6 Where a witness swearsupon the voire dire, that he does not know-uthether he is wi* terestedinthe sISlrnot, his interest may be proyed by other r Sheriff’s offiimmediately after he re-^ a levy on pro-the plaintiff tion^’without of the writ, ecup'd when the grantor is than the his whoiíestate, and just after one creditor has obtained judgment against him, containing in the first place an absolute conveyance of property, in consideration of which the grantor agrees to pay a valuable consideration, but followed by a proviso, by which he is permitted to relinquish the bargain at any time he may choose, and on a re-deliverv of the property, receive from the grantee any money which he may have expended on it, is fraudulent against creditors. Where a parol transfer of property is attended with suspicious circumstances, the jury are the proper tribunal to determine, whether it was fraudulently entered into, with a view to defeat creditors.

In Error. THIS was a suit, brought in the Common Pleas of Northumberland county, in the name of the Commonwealth, for the use of Peter Lazarus, against William Shannon, She-°f tbe said county and his sureties, on Shannon’s official bond. The breach assigned in the condition of the bond wasi that Shannon refused to execute a writ of fieri facias, issued out of the Court'of Common Pleas of the said county, _ on a judgment obtained by Lazarus against a certain fames Lazarus directed the Sheriff to levy on a printing ^ «ress, the property of Fox; but it was claimed by one Seit- > ztnger9 who indemnified the Sheriff, in'consequence or which be returned, nulla bona. This action was commenced soon after the Sheriff’s' refusal to levy according to the plain. . J ° r tifFs instructions, and before the return of the fieri facias9 faring the trial of the cause, the plaintiff asked permission to assign another breach in the condition of the bond, viz. that William Shannon, having arrested the said Fox on a caPtas ad satisfaciendum issued at the suit of I.azarus, suffered him to go at large. To this amendment the counsel for the defendants objected, but the Court permitted it, and an excepwas taken to their opinion. Thomas Painter, who was surety in the bond given by Seitzinger to indemnify the Sheriff, was cabed as a witness by the defendants, and examined by on the voire dire, when he answered, “ That he did not knozo -whether he was bail to the Sheriff or not. lie was not positive, and did not recollect executing the bond.” The plaintiff then proposed to prove by other evidence, that he was a party to the bond; to which the counsel for the defendants objected. The Court permitted the evidence to be given, and sealed a second bill of exceptions. In order to prove that the property on which the Sheriff had been directed to levy, did not belong to Fox, the defendants produced a deed, dated December 17th, 1818, by which James M. Fox conveyed to Jacob Seitzinger, all the establishment of a newspaper called “ The Times” together with the press, types, and all other materials thereto belonging, and all the outstanding debts, amounting to 1120 dollars 45 cents, in consideration of which, Seitzinger covenanted to pay him 750 dollars on the execution of the deed, and 150 dollars more in fifteen months afterwards. The deed contained a priviso, that in case “ Seitzinger should not at any time afterwards be willing to retain the property, he might make sale of it, and if, it should be sold for 1000 dollars, Fox should allow Seitzinger ISO dollars for his bargain or trouble, and if a sale should be effected for more than 1000 dollars, all above that sum should be a nett gain to Seitzinger.” And further, that if Seitzinger should not be inclined to keep the establishment, &c. he should be entitled to relinquish it; in which case, Fox should account for, and pay back to him, all monies which he had paid or advanced in consequence of the agreement. It appeared that very few of the outstanding debts could be collected. After the execution of the written instrument above mentioned, a parol agreement was entered into, by which Seitzinger was to retain the printing establishment, &c. as his absolute property, in consideration of which he was to, pay one hundred dollars to Fox, and to discharge his debts to the amount of 400 dollars, which was accordingly done. There was no schedule shewing the creditors whose debts were to be paid, nor the amount of their debts, and it was proved that Seitzinger had several times declared, that the plaintiff should never get a cent of his debt. In their charge, the Court delivered the following opinion to the jury, to which the counsel for the defendants excepted ;■ “ It was the duty of the Sheriff to make a levy on whatever interest Fox had in the press, and if by his neglect to do so, the plaintiff lost his money, he would be liable for the loss.” The defendants’ counsel excepted likewise to the opinion of the Court, delivered upon various questions proposed to them, of which it is necessary to mention only the two which follow : 1. That if before the writ was delivered to the Sheriff, the property at the printing office was vested in Seitzinger, the Sheriff 'was not bound to take it in execution; and having until the return day of the writ to execute it, this suit was brought prematurely. To this preposition the Court answered, that if before the execution was delivered to the Sheriff, the property bona fide belonged to Seitzinger, and was not conveyed to him with a view to prevent the plaintiff from obtaining his debt, the Sheriff was hot bound to levy upon it. If, from the evidence, the jury are satisfied that at the commencement of this suit, the Sheriff.had refused to make a levy, the action may be maintained, though commenced before the return of the. writ. 2. That the article of agreement of 17th December, 1818, and the parol agreement given in evidence, were not fraudulent ; and if Seitzinger proceeded fairly to carry the latter into effect, received possession of the property, and paid the creditors known to him when he entered into it, the property was transferred to him. The answer of the Court to this point was, that the article of agreement was not an absolute sale, and that Fox’s interest in the property might be levied upon. Whether the subsequent bargain was fraudulent or not, was a fact for the jury. If fradulent, it was void, and the property was liable to be levied upon by the Sheriff, whose refusal to levy upon it, would make him answerable to the plaintiff. But if the bargain were bona fide, and not with a view to defraud the plaintiff, it would be good, and the Sheriff would not be answerable. On the argument in this Court, several points were discussed by the counsel, which are not noticed in the opinion of the Court. They are therefore not stated here. 3. In admitting evidence to prove the interest of a witness who had already been examined on the voire dire, the Court below violated a well established rule of law, that where a party resorte to that mode of testing the interest of a witness, he must abide by it. 2. The first breach assigned by the plaintiff was, the Sheriff’s not executing a writ of fieri facias. The new breach, which the Court permitted to be assigned, after the commencement of the trial, was that the person against whom the fieri facias had issued at the suit of the plaintiff, had been arrestedjon a capias ad satisfaciendum, and permitted by'the Sheriff to escape. This was quite a new cause of action, and therefore ought not to have been permitted to be introduced. 5 Binn, 51. 3. The written agreement was an absolute sale, though voidable by Seitzinger at any time within fifteen months after its date, when the last .payment was to be made. It then become absolute as to him, as well as regarded Fox, who never had the privilege of annulling the sale. One of the stipulations was, that if the press, &c. sold for 1000 dollars, Fox was to allow Seitzinger 130 dollars for his trouble, and Seitzinger was to pay him the overplus, after deducting his own debt; but this overplus could only be recovered in ah action of covenant, the property in the thing itself, having passed out of Fox’, and'vested in Seitzinger, as whose property it might have been taken in execution. Property may be divested, though the sale is conditional, 14 Johns. 167. Fox therefore had not an absolute property in the goods, capable of being sold, which must exist in a defendant' to authorise the Sheriff to levy upon them. 2 Bac. Ab. 715, Execution C. 4. 4. The parol agreement was not a relinquishment of the written contract. It was merely an alteration of it, as re. garded the price, induced, by SeitzingeFs discovery that the outstanding debts could not' be collected. The price was fairly paid by the payment of one hundred dollars to Fox’, and the discharge of his debts to the amount of 400 dollars. All the facts were ascertained, and placed beyond dispute, which presented a question of law to the Court, whether or not the transaction was fraudulent ? Where thqre is no dispute about the facts, fraud is a question of law. It is the judgment of the law upon facts and intents. Sturtevant v. Ballard, 9 Johns. 337. 14 Johns. 304. The Court of Common Pleas therefore erred in submitting such á question to the jury. S. The suit was brought prematurely. As the Sheriff had until the return of the writ to make the levy, he might have levied after the commencement of the action. 1st. That the written agreement was, on its face, void as regards creditors ; and 2dly. That the transaction, under all its circumstances, was fraudulent and void. • 1. The first part of the written article imports an absolute sale, but it is followed by a proviso authorising Seitzinger to relinquish the property at any time he pleases, and to pay Fox what it may sell for, after deducting all his expenses, and ISO dollars for his trouble. If it sold for more than 1000 dollars, he was to keep the surplus himself. This was in effect nothing more than a power of attorney to sell. It vested no absolute property in Seitzinger, but tended directly to delay and defeat the' creditors of Fox. 2. The transaction was fraudulent under all its circumstances. Seitzinger elected to avoid the written article, and took the property under a parol agreement for 350 dollars less than he had before agreed to pay for it, and by this new arrangement, Fox secured 100 dollars to himself. The creditors had no remedy against Seitzinger, but were placed entirely at his mercy. There was no engagement to pay any particular amount to any particular creditors. He was to pay them as he ^ pleased, and he persisted in declaring that the plaintiff should never get a cent. There was therefore no error in the charge. The Judge said the written agreement was not an absolute one, and submitted to the jury whether on the facts given in evidence, the transaction was not fraudulent. If it was, Fox retained a property on which the Sheriff was bound to levy. Enough was proved to authorise an inference, that .Seitzinger made the purchase with a view to defeat the plaintiff’s recovery of his debt. If such was the intent, the transaction was fraudulent, notwithstanding a valuable consideration may have been paid. Roberts on Brit. Stat. 302. 5 Serg. Rawle, 278. On the whole, it was a proper case for tbe decision of a jury, who would take every thing into view, and give to each circumstance its proper weight. 3. There is nothing in the objection, that the suit was brought before the return of the fieri facias. It was not brought until the Sheriff had refused to make the levy, which is the foundation of the action. An action for damages for a breach of contract on the sale of goods, may be maintained as soon as the purchaser refuses to take them, though the goods were sol’d on a credit which has not expired. Girard v. Taggart, 5 Serg. & Rawle, 19.