Hickman v. Caldwell

• Decision Date: 17 February 1834
• Citation: 27 Am.Dec. 274,4 Rawle 376
• Parties: HICKMAN v. CALDWELL. BLACK v. CALDWELL.
• Court: Pennsylvania Supreme Court

4 Rawle 376

27 Am.Dec. 274

HICKMAN v. CALDWELL.

BLACK v. CALDWELL.

Supreme Court of Pennsylvania.

February 17, 1834

APPEAL.

If a fieri facias be issued, and returned " Levied as per inventory," & c. with an inventory annexed thereto, and immediately after its return an alias fieri facias be issued on the same judgment, and put into the sheriff's hands, with instructions from the plaintiff's attorney to stay proceedings for the present the object being merely to secure the debt due to his client it must be postponed to a fieri facias subsequently issued by another creditor, which has been duly acted upon.

THIS was an appeal from the decision of the Court of Common Pleas of Delaware County, in the distribution of the proceeds of real estate sold by the sheriff under execution.

From the record it appeared, that on the thirtieth of December, 1830, a judgment was confessed in the court of Common Pleas of Delaware county, by John Caldwell, in favour of Ann Black, on a bond of the same date, conditioned for the payment of six hundred dollars on the same day. On the following day a fieri facias issued on this judgment, which was placed in the hands of the sheriff, with instructions, which with the manner of making the levy, and taking the inventory will appear hereafter. This fieri facias was returned to January term, 1831, (on the 17th of January ) " levied as per inventory," & c., and an inventory was attached to the writ. On the twenty-first of January, 1831, Ann Black issued an alias fieri facias on her judgment, and placed it in the hands of the sheriff, with instructions which will also appear hereafter.

On the fifth of February, 1831, Francis Hickman obtained judgment against John Caldwell, issued a fieri facias, on which the real debt indorsed was three hundred and thirty-four dollars and fifty cents, with interest from that date, placed it in the hands of the sheriff, and directed a close levy to be made, and the property sold. The sheriff, conceiving from what had taken place, that the proceedings under Ann Black's execution had been stayed in such a manner as to give Hickman's the preference, proceeded to levy, advertise and sell, on the execution of the latter, on which he returned, " levied the debt and damages within specified, & c. and that he has the moneys," & c.

To the alias fieri facias of Ann Black, he returned, " levied the sum of five hundred and fifty-nine dollars and twelve cents, part of which is subject to the payment of Hickman's execution, and leaving only two hundred and one dollars and eighty-seven cents, to be applied to the payment of costs, and part of the debt on Mrs. Black's execution."

After some delay, the money was paid into court for distribution by the sureties of the sheriff, he having become insolvent.

On the twenty-ninth of February, 1832, a rule was obtained on behalf of Hickman, to show cause why he should not take out of court the amount for which his execution issued; and on the twenty-eighth of May, 1832, a similar rule was obtained on behalf of Mrs. Black, the object of which was to enable her to take out, under her execution, all the money which had been paid in.

It was agreed by the counsel, that the notes of the evidence taken in the Court of Common Pleas by Judge DARLINGTON, should be received on the appeal. The material parts of the evidence only need be stated.

John Broomshall, esquire, the late sheriff, testified, that the first inventory he received, was obtained through Caldwell, who came down to his house, and gave him a correct account of the property. He told the sheriff it was not worth while to go on to the property, he was going to break, was insolvent, and would have to be sold out. William Martin, esquire, (the attorney of Mrs. Black ), took the account of the property, and gave him the schedule. The sheriff had his instructions from Caldwell, who observed, that he was insolvent. Mr. Martin told the sheriff to hold on to that writ; it was not their disposition to sell Caldwell out, it was only to make Mrs. Black safe. Some time subsequent to this, another fieri facias was put into the sheriff's hands at the suit of Hickman, with orders to go on and sell; to make a close levy; to pay no attention to the former levy; to make a new and a strict one. Under the last-mentioned writ, he sold and made a return. The sheriff stated, that he should not have sold on that execution, if Mr. Martin had not directed him to stay the proceedings on Ann Black's execution. An alias fieri facias on Mrs. Black's judgment was put into his hands in court by Mr. Martin, who requested him not to return the first execution until he had delivered him that. He said he had no disposition to sell Caldwell out; he only wanted to hang on to the property to make themselves secure. The goods were left with the defendant, before Hickman's execution came out. The sheriff was not on the premises at all, until Hickman's execution was sued out; his deputy was there when the levy was made under that execution. There was no previous levy.

On his cross-examination the sheriff stated, that he did not recollect whether Caldwell was present when the inventory was attached to the fieri facias. He recollected Caldwell's telling him that he was going to break, and had employed Mr. Martin as his attorney. Mr. Martin was not then present.

The witness further stated, that Caldwell brought him the list, but being aware that there might be a difficulty, he sent his deputy out to make a close levy, which he did, and it was annexed to the writ, but it was not the one then attached to it. He made the return on the faith of his deputy. The alias fieri facias he stated, was issued immediately on the return of the original fieri facias. When Hickman's execution come into his hands he did not inform the person who brought it that he had Mrs. Black's. He went to Mr. Martin, and did not inform him than an execution had been put into his hands at the suit of Hickman. He went to Mr. Martin to know what he was to do with the alias fieri facias, and whether he was to go on and sell or not. Mr. Martin told him he wished proceedings stayed. The witness added, that he knew the proceedings were ordered to be stayed. He had the alias fieri facias in his hands at the time. After the advertisements were set up, Mr. Martin went to the sheriff and asked him, what writ he was selling under. He answered, Hickman's. Mr. Martin then said, you must go on and sell under Mrs. Black's. The sheriff answered, that he would make return of the balance of the money to her.

Jonathan Vernon, who was also affirmed on the part of Hickman, stated, that the sheriff and Mr. Martin were talking in Irvin's barroom, and the sheriff called on the witness to take notice of what he said. He then asked Mr. Martin whether he should go on with the sale of John Caldwell's property or not? Martin said--‘ No; stay proceedings.’

Samuel R. Lampleugh testified, that he was the deputy sheriff, and went to levy on the property at the suit of Hickman. He never went to make a levy on it at the suit of Mrs. Black. He never went on that business more than once.

It was proved or admitted that John Caldwell and Mrs. Black were half brother and sister, and lived together.

On the part of Mrs. Black, William Martin, esquire, was affirmed, and stated that he was the attorney of Mrs Black, in relation to the alias fieri facias: That in the conversation which took place at Irvin's the sheriff called upon him to know whether he should go on immediately with the execution at the suit of Ann Black against John Caldwell, and whether he should immediately advertise and sell: That he told him " it was not the wish of the plaintiff to sell the property of the defendant at that present time: That it was the dead of winter, and property would sell better at another period: That he would give him instructions when he wanted him to sell: That Mrs. Black did not want to press her brother if she was secure in her debt:" That the sheriff then called Mr. Vernon, and mentioned to him, that he wanted him to take notice, that he (the witness) had ordered the proceedings stayed: That he remarked to the sheriff at that time, or immediately after, that Mrs. Black wanted the proceedings stayed for the present moment or time, so far as regarded advertising, and proceeding to sale: That he called, as he thought, the next day, on the sheriff, who was sick in his chamber, and told him he had learned that another execution had been issued and he supposed he would go on with the sale whether they were disposed or not: That in Irvin's bar-room the sheriff did not inform him that another execution had been issued, nor did he know it until the next day: That when the first fieri facias was issued, the sheriff and Caldwell came to him in the prothonotary's...