Knowles v. Lord

• Decision Date: 03 May 1839
• Citation: 34 Am.Dec. 525,4 Whart. 500
• Parties: KNOWLES and Others v. LORD and Others.
• Court: Pennsylvania Supreme Court

4 Whart. 500

34 Am.Dec. 525

KNOWLES and Others v. LORD and Others.

Supreme Court of Pennsylvania.

May 3, 1839

IN ERROR.

1. In replevin for six cases of prints, containing a specific number of pieces, and property-bond given, reciting the tenor of the writ, the return was " replevied, summoned, and claim, property-bond given." Held, That evidence was not admissible to show that the number of pieces actually replevied, was less than that mentioned in the writ and that divers pieces of goods mentioned in the writ of replevin, had been sold in the course of business, before the issuing thereof.

2. Assignees for the benefit of creditors, stand in no better situation than the assignors. Neither they nor the creditors whom they represent are purchasers for a valuable consideration, within the doctrine in favour of such purchasers; and this even though the assignment contain a stipulation for release of the assignors by certain of the creditors, who execute a release accordingly.

ERROR to the District Court for the City and County of Philadelphia.

This was an action of replevin brought by the defendants in error merchants in New York, for six cases of goods, sold by them on the 6th of April, 1832, to Knowles, Schroeder and M.Calla then trading in Philadelphia.

On the 1st May, 1832, Knowles, Schroeder and M'Calla, executed a voluntary assignment of all their property to Gershom W Lambert and Abner Pollard, Jr. in trust to pay the holders of certain notes and drafts mentioned in a schedule annexed amounting to twenty four thousand six hundred and thirty-four dollars thirty-one cents; and also certain specified amounts due to Gershom W. Lambert, by the assignees; secondly to pay certain notes mentioned in an annexed schedule, should the same remain unpaid by the drawers thereof, and for which the said Lambert was in any manner responsible, and also to indemnify him for all responsibility for the rent and covenants in the lease of the store where the business was carried on; thirdly, to pay three notes of Edward Schroeder, one of the assignors; and fourthly to divide the surplus rateably among all such other creditors of the assignees, as should execute a full release of their claims on the assignors on or before the 15th day of June, 1832.

This action was brought to recover the goods sold, on the ground that the purchase was made without intention to pay for them, and vested no title in the assignors.

The writ of replevin was for four cases of prints, containing each fifty pieces; one case of prints, containing forty-three pieces; one case of furniture prints, containing sixty-five pieces; value eighteen hundred dollars, or thereabouts.

The sheriff's return was as follows: " May 15th, 1832. Replevied, summoned, and afterwards claim property-bond given."

The condition of the claim property-bond which was given on the 17th of May, 1832, by the assignees Lambert and Pollard, to the sheriff, was in the usual form: it recited the tenor of the writ of replevin, setting forth the goods as described therein; and that the said Lambert and Pollard had claimed property in the said goods; wherefore delivery of the said goods could not be made.

On the trial before PETTIT, (President,) on the 10th of Feb. 1838, the officer who executed the writ of replevin was called by the defendants for the purpose of proving, notwithstanding the sheriff's return, that the number of pieces actually replevied was much less than the number mentioned in the writ.

The books of Knowles, Schroeder and M'Calla were likewise offered to show sales of some of the goods before the issuing of the replevin. This evidence was objected to, and the objection sustained by the Court, which formed the first and second errors assigned.

Two releases signed by certain creditors of the assignors under the stipulation in the assignment, one dated the 1st June, 1832, the other the 1832, were given in evidence.

The Court was requested by the defendants to charge the jury that the assignees being bona fide purchasers for a valuable consideration for the other creditors, the plaintiffs are not entitled to recover. The learned judge, however, instructed the jury that the assignees under the circumstances of the case, were in no better situation than the assignors, and that if the plaintiffs could recover against Knowles, Schroeder and M'Calla, the fact of the assignment would make no difference: this formed the third of the errors assigned, which were as follows:

" 1. That the Court erred in rejecting the evidence of E. K. Collins, offered to show that the number of pieces of goods actually replevied, was less than that mentioned in the writ of replevin.

2. That the Court erred in rejecting the books of Knowles, Schroeder and M'Calla, offered to show the sale of divers pieces of the goods mentioned in the replevin, before the issuing of the writ.

3. That the Court erred in charging the jury that the assignees stood in no better situation than Knowles, Schroeder and M'Calla, in regard to their goods."

Mr. M'Call, for the plaintiffs in error.

1. The evidence was offered, not to contradict the return of the sheriff, but only to apply it to its real subject-matter. The return is indefinite, and applies as well to four cases of goods as to five. No averment shall be admitted which is directly against the sheriff's return; but here the proof is perfectly consistent with it. The distinction is between averments directly against, and those which stand with the return. The former are inadmissible, the latter may be shown. Dalton, ch. 42, p. 189. 7 Hen. 7, pl. 14. 5 Edw. 3, 1.20 Edw. 3, 11. Vin. Abr. Return, vol. 19, p. 198, pl. 20. Dolan v. Briggs, (4 Binn. 496,) is a stronger case than the present, and ought to govern this. There the marshal was commanded to sell a schooner, with all her tackle, apparel and furniture, or so much thereof as might be necessary. He returned that he had sold the schooner, her tackle, apparel and furniture to Dolan; and the deputymarshal was allowed to prove that certain sails were expressly excepted at the time of sale and not sold. " The return" says C. J. TILGHMAN, " did not particularize the articles which were sold, and it might very well consist with it that part was sold and part not sold." So here it may very well consist with the return, that four cases of goods were replevied and not five. To which cases may be added, Commonwealth v. Craig, (1 Serg. & Rawle, 23.) Meredith v. Shewell, (1 Penn. Rep. 496.)

2. Then as to the other point: the assignees are purchasers for a valuable consideration for the other creditors. The fact of the release differs this case from Williams v. Twelves, (3 Wharton, 485.) The releasing creditors have lost their reclamation. They have parted with their claims on the faith of these very goods; and if this is not a valuable consideration, it is difficult to conceive what a valuable consideration is. The Court cannot say that the release was not signed on the credit of these very goods. It is impossible to draw a distinction founded in reason between a consideration of money paid at the time, and of a valuable claim released at the time. Then even if the sale were fraudulent, the goods cannot be reclaimed in the hands of bona fide purchasers. This is a well established limit to the right of the vendor to follow his goods. It is indicated in Mackinley v. M'Gregor, (3 Wharton, 396,) and fully laid down in Durell v. Haley, (1 Paige, 492.)

Mr. Randall and Mr. Scott, contra.

The evidence offered went to contradict the return. The return is a short one, according to our practice, but if written out, the contradiction is apparent. Moreover the claim property-bond which recites the description in the writ, is a complete estoppel to the obligors. If the defendants were injured by a false return, their remedy was against the sheriff. If the objection had been taken at an earlier stage of the proceedings, the plaintiffs might have taken the proper measures; but after being thus lulled to sleep by the silence of the plaintiffs, they ought not now to be turned round to an action against the sheriff. They cited Watson on Sheriff, p. 72. Shaw v. Simpson, (1 Ld. Raym, 184.) Hoffman v. Coster, (2 Whart. 453.) Are assignees for creditors in any case purchasers for a valuable consideration? We submit they are not. Money must be paid at the time to constitute such a purchaser. The consideration of a precedent debt is not sufficient. There are many authorities which bear on this point. They cited and commented on Root v. French, (13 Wend. 570.) Mackie v. Keans, (5 Cowen, 555.) Coddington v. Bay, (20 Johns. 639.) 5 Johns. Ch. R. 54. Petrie v. Clark, 11 Serg. & Rawle, 377.) M'Carty v. Springer, (3 Rawle, 159.) Dickenson v. Tillinghurst, (4 Paige, 215.) Then does the release make any difference? It would be a very dangerous doctrine to hold that a fraudulent debtor might by stipulating for a release give a sanction to his previous frauds, and enable the releasing creditors to acquire a title which he himself had not. Here the result of the estate has shown that the releasing creditors will get nothing; the whole estate being swallowed up by the preferences in which Lambert was interested. Moreover the releases were not executed until some days after the issuing of the replevin, which was lis pendens, and notice to the releasing creditors.

Mr. J. R. Ingersoll, in reply.

The debts of the releasing creditors being extinguished, it is the same in effect as if money had been paid at the time. Walker v. Geisse, (4 Whart. 252,) recently decided shows this. [KENNEDY, J. Walker v. Geisse, did not touch a voluntary assignment.] It did not. But it repudiates a distinction like that asserted on the authority of the New York...