HICKMAN against CALDWELL; BLACK against The Same, 4 Rawle 376

The opinion of the court was delivered by Gibson, C. J. This case is said to have been ruled below on the authority of Howell v.

Alkyn, 2 Rawle, 282; and ruling it by the principles assumed by the judge to whom was assigned, in that case, the duty of pronouncing the judgment of the court, instead of ruling it by the point directly decided, the conclusion drawn by the President of the Common Pleas, could not well have been avoided. 1 feel bound to say, however, that those were not the principles of the cause as settled in consultation, the circumstance intended to have been made the test, being the same that had been applied in Eberle v. Mayer, 1 Rawle, 366, and that has since been applied in the Commonwealth v.

Stremback, 3 Rawle, 341, to wit, — the presence or the absence of a direction to stay proceedings on the levy. There was no such direction in Howell v. Alkyn; and the mere sufferance of procrastination by the officer, was held not to be fraudulent per se. Had the exact bearing and extent of the principles laid down in the opinion delivered, been perceived at the time, the disclaimer would have been made then, which I feel it a duty to the profession and the court to make now.

I am happy to have the authority of my brother Rogers, the other survivor of the judges who then composed the court, for the entire accuracy of this statement, and for saying that the principles laid down by my brother Huston were peculiar to him. Then, without intimating an opinion on the point made here, in relation to the supposed effect of the return on the rights of the parties, we will determine this case, as we have determined all others of a similar nature, by an application of the test just mentioned.

The principle of this test is, that to levy with directions to proceed no further, can be referred to no object but the creation of a lien which the law does not tolerate. What was the object here?

Ann Black, who claims priority, put her fieri facias into the hands of the sheriff, with instructions that will presently be stated, on the thirty-first of December, 1831, which was returned at the January term succeeding, ‘ levied as per inventory.’ Immediately after this return was made into office, an alias fieri facias, which was not the next process in order, and which is therefore a suspicious circumstance, was issued to the succeeding term. Hickman put his execution into the sheriff’s hands on the fifth of February, with directions to proceed promptly, make a close levy, and sell the property.

To this execution the sheriff returned, ‘ Levied the debt and damages within specified, &c. and that he has the money,” die. To Black’s alias ho returned, “ Levied the sum of five hundred and fifty-nine dollars twelve cents; part of which is subject to the payment of Hickman’s execution, and leaving only two hundred and one dollars thirty-seven cents to be applied to the payment of costs and part of the debt on Mrs. Black’s execution.” Thus stands the case on the written evidence of the writs and returns. The parol evidence makes it perfectly clear that there was an actual plan on the part of Mrs.

Black, her attorney, and the debtor, who was her brother, to use her execution, not only for purposes of present security, but to cover the property for a time from other creditors. The sheriff testifies, that he received his instructions from the debtor himself and the plaintiff’s attorney, and that they furnished him with a list of the property, the debtor saying, it was not worth while to go to the house; that he was insolvent, going to break, and must be sold out; and that he would give the sheriff a correct account of the property. The sheriff further testifies that the attorney made the

schedule and delivered it to him, desiring him ‘ to hold on to that writ,’ and saying it was not his client’s disposition to sell Caldwell out; it was only to make her safe.’ The officer swears he would not have sold on the second execution, if the attorney had not directed him to stay proceedings on the first: That when the alias was put into his hands in court, he was requested not to return the preceding execution till the attorney had delivered him that, as his client had no disposition to sell the debtor out, but only to make herself secure: That the debtor said he had made Martin his attorney; and that Martin had ordered the proceedings to be stayed.

There was much more to the same effect,the order to stay being further proved by Vernon, a witness present when it was given.

Martin corroborates the testimony of the sheriff, and says, he told him when the latter called for instructions, that it was not the plaintiff’s wish to sell the property ‘ at that present time; that it was the dead of winter, and the property would sell better at another time, and he would give him instructions as to the time; and that the plaintiff did not want to press her brother if she were secure of the debt, but wanted the proceedings stayed for the present, so far as regarded advertising and proceeding to sale.’ He proved, however, that he ordered the sheriff to proceed promptly as soon as he discovered that there was a conflicting execution in his hands; and that both Mrs.

Black and Caldwell applied to him to issue the execution, the latter admitting he owed her six hundred dollars, and the former desiring the attorney to have it secured. This is the substance of the case, given for the most

part in the words of the witnesses; and it shows, not only a stay of execution pursuant to an order of the execution creditor, but a clear preconcerted plan, not only to levy the execution as a security, but to keep the other creditors at bay : so that it is unnecessary to say, that it presents one of the strongest instances of legal fraud that can be imagined. It is ordered, therefore, that the decree of the court below be-reversed; and that the money in court be applied in the first place to Hickman’s execution, leerving the surplus for that of Mrs. Black. Decree reversed.