Jaffray's Appeal

• Decision Date: 02 January 1883
• Citation: 101 Pa. 583
• Parties: Appeal of E. S. Jaffray & Co.
• Court: Pennsylvania Supreme Court

101 Pa. 583

Appeal of E. S. Jaffray & Co.

Supreme Court of Pennsylvania.

November 29, 1882.

January 2, 1883.

November 29th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

APPEAL from the Court of Common Pleas of Crawford county: Of January Term 1883, No. 99.

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John P. Vincent and Thos. M. Marshall (with them R. Brown and J. B. Brawley), for the appellants.

D. T. Watson (with him F. B. Guthrie), for the appellees.

Mr. Justice GORDON delivered the opinion of the court, January 2d 1883.

Able and ingenious as is the opinion of the learned judge of the court below, it has failed to convince us of the rectitude of the legal position which he therein assumes.

The question is a very simple one, and one upon which there is no real difference of authority; indeed, there can be none, so far as the state of Pennsylvania is concerned, for the whole matter is fixed and controlled by the provisions of the Act of Assembly. The question is, were the goods in controversy regularly seized by the sheriff of Crawford county on the writ of foreign attachment of Jaffray & Co.? If they were so seized, the present contention must be determined in favor of the appellants. In order then to settle this matter, we must turn to the sheriff's return as indorsed on the writ, but when we do so we find in this a strict compliance with the terms of the Act of Assembly. If it be, as stated by this return, that the sheriff, by himself or deputy, went to the store of De Forest Weld, in the city of Meadville, on the 1st of March 1881, at 3.53 P. M., and there declared, in the presence of F. W. Ellsworth and L. H. Lenheim, two credible persons of the neighborhood, that he attached the stock of goods in the store, consisting of silks, &c., and that he then and there made known the contents of said writ to Byers and Trawin, who were found in the possession of said goods, then, from that moment, this property, in the language of the Act, was bound by the writ and in the officer's power, and from that moment Byers and Trawin became the sheriff's bailees, and to him they were responsible for the care of the goods, as he in turn was answerable, under the 50th section of the Act of 1836, for the forthcoming of the property to answer and abide the judgment of the court. About these facts, however, thus set forth, there is no dispute. It is a fact that the deputy sheriff did, at the time stated, go into the store, and there, with the goods in sight and fully within his power, execute the writ as set forth in his return. This was a seizure to all intents and purposes. As was said by SERGEANT, Justice, in Paxton v. Steckel, 2 Barr 93, the levying the attachment may be done without either handling the goods, or taking them into possession, and the property fully bound by it, and be in the officer's power, and the owner's possession thereby divested. Now the error in the court below seems to have arisen from a misunderstanding of the word "seized" as used in the cases by it cited. As in the cases of the Pennsylvania Railroad Co. v. Pennock, 1 P. F. S. 244, and Morgan v. Watmough, 5 Wh. 127. But in these, as in all the other cases thus cited, where seizure and possession are insisted upon, it will be seen by a careful reading of them, that no exception has ever been taken to a seizure such as the one now under consideration; on the other hand that is exactly the one that is said to be required, and the one which, by force of the act, draws the possession to it. In the first of the two cases last mentioned, Mr. Justice THOMPSON says: "Now, it is undoubted that the property claimed to be attached in this case, was susceptible of seizure, had it been present. But it was not, and nothing was done in attaching it that the Act requires. There was no seizure and declaration in the presence of witnesses, and if this were necessary to a service as the Act declares, the property was not bound by the writ. If the property was not bound it is not easy to see how any person would be bound to answer as garnishee. The first thing was to serve the property, so to speak, the next the person in whose hands it should happen to be found. But here the order was reversed, and rather more. The garnishee...