Commonwealth v. Stremback
| Decision Date | 02 February 1832 |
| Citation | 3 Rawle 341 |
| Parties | The COMMONWEALTH for the Use of REYNOLDS v. STREMBACK and Others. |
| Court | Pennsylvania Supreme Court |
Whether, where an execution is levied upon all the goods and chattels of an inn-keeper, consisting of a variety of household and kitchen furniture, and, also, of a quantity of liquors and bar furniture, which are suffered to remain in his possession between thirteen and fourteen months before any step is taken to effect a sale, it retains its lien dubitatur.
If a plaintiff, after having levied an execution on personal property, directs the sheriff " to stay proceedings until further orders, the levy to remain," the lien of the execution is gone, as respects third persons, whether purchasers or execution creditors, if the object of the arrangement was a security for the debt; and it is of no consequence whether the execution be returned or not, or whether or not third persons had notice of it.
THIS cause was tried before Judge ROGERS at Nisi Prius, when a verdict was rendered for the defendants.
It now came before the court on a motion for a new trial, founded on an alleged misdirection of the Judge to the jury, and was argued by Wheeler for the plaintiff, and Miles and Bradford for the defendants.
The opinion of the court, which contains a statement of all the material facts, was delivered by ROGERS, J.
This was a scire facias on a sheriff's recognizance. The plaintiff assigns for breach of the recognizance, that the sheriff did not, according to law, well and truly execute all writs and process of the Commonwealth, to him directed in this, that he refused to execute a writ of fieri facias, which had issued at the suit of William Reynolds against a certain Aaron Clements. The facts, so far as they are at present material, were as follows. To the March term, 1828, William Reynolds obtained a judgment against Aaron Clements for two thousand four hundred and forty-seven dollars, and forty-seven cents, on a bond, with a warrant of attorney, conditioned for the payment of one thousand and seventy-three dollars, and seventy-four cents. A fi fa. was issued to the June term, 1828, which was delivered to the sheriff on the first of April, 1828. On the 10th of April, 1828, the sheriff's deputy made this memorandum, which he attached to the writ " Levied on all the goods and chattels of Aaron Clements, now in his possession at the sign of the Indian Queen, South Fourth Street, consisting of a variety of household and kitchen furniture, together with a quantity of liquors and bar furniture."
It appeared in evidence, that the judgment was entered, and the execution issued in consequence of Clements' default in the payment of an instalment of two hundred dollars a year, which he had agreed to pay in liquidation of the debt. After the levy Clements called on Mr. Wheeler, who was Reynolds' attorney, and expostulated with him, alleging that the levy would cause his ruin. They then entered into an arrangement, that Clements should give two notes for one hundred dollars each, payable in sixty and ninety days; whereupon the plaintiff's attorney gave the following order to the sheriff.
These notes, viz. the notes for one hundred dollars each, were duly paid; but in the following year Clements had to pay another sum of two hundred dollars, arising out of the same transaction, for which he again gave two notes, which have not been paid. After failure of payment, a bond of indemnity, dated the 29th May, 1829, was delivered to the sheriff, and Mr. Wheeler gave him, first a verbal, and then a written order, dated the 11th June, 1829, to proceed on the fa. fi. issued on Reynolds' judgment. The sheriff refused to execute the writ, alleging that the levy had remained too long; that there was an order to stay proceedings, and that there had been an assignment to assignees, who were entitled to the property.
Clements executed two assignments in trust for certain specified creditors. One dated the 3d of May, 1826, to Benjamin S. Bonsall, Thomas Cooper and Charles Champion. The other dated the 13th of May, 1829, to Peter Wager and Benjamin S. Bonsall. On the second assignment, an inventory was filed, and a bond given according to the directions of the act.
The plaintiff asks for a new trial on the ground of misdirection in the charge to the jury in this, that if the second assignment was good, it was of no manner of consequence, whether the assignees, or those claiming under them, had or had not notice of Reynolds' execution and levy, because of the order to stay proceedings; that the direction for the levy to remain, would be of no effect against them.
2. That the lien of Reynolds' execution was waived in favour of Palmer's execution, by reason of the order to stay proceedings, notwithstanding the direction for the levy to remain.
As both points involve the same principles, the correctness of the charge, might be rested on the effect of the order to stay proceedings, but I think it proper to notice some other matters connected with the case. The levy was made on the 10th of April, 1828, and it was not until the 30th of May, 1829, that Mr. Wheeler gave a verbal order, and on the 11th of June, 1829, a written order to proceed, so that for thirteen or fourteen months, the goods were suffered to remain in the possession of Clements, without any step having been taken to effect a sale. In England the practice is to remove the goods, and the fact, that they are not removed, is a badge of fraud, so as to render them liable to a subsequent execution, or to pass into the hands of a purchaser discharged from the lien of the...
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Kent, Santee & Co.'s Appeal
...all creditors, and deed recorded, bond given and possession taken, is put on the same footing with a subsequent execution: Commonwealth v. Stremback, 3 Rawle 341; McClure v. Ege, 7 Watts 77. From the facts as proved, the conclusion is inevitable, that these executions were not issued for th......
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Work's Appeal
...directions of the plaintiff in the execution not to advertise a sale was a stay of the writ as to other execution-creditors: Commonwealth v. Stremback, 3 Rawle 341; Corlies v. Stanbridge, 5 Id. 286; Freeburger' Appeal, 4 Wright 247; Pary & Co.'s Appeal, 5 Id. 273; Keyser's Appeal, 1 Harris ......