Lowry v. Coulter

• Decision Date: 11 October 1848
• Citation: 9 Pa. 349
• Parties: LOWRY <I>v.</I> COULTER.
• Court: Pennsylvania Supreme Court

Page 349

9 Pa. 349

LOWRY v. COULTER.

Supreme Court of Pennsylvania.

October 11, 1848.

IN error from the Common Pleas of Venango.

Riddle and Pearson, for plaintiff in error.

R. Brown, contrà.

Oct. 11. GIBSON, C. J.

Primâ facie, no fraud is apparent in the confession of the judgment to Lowry & Son. At common law, a debtor might prefer particular creditors, and whether by assignment in trust, or by judgment and execution, was indifferent, the manner of doing it being modal. If, however, the purpose was not to prefer, but to delay, the transaction, in whatever form, would be within the 13 Elizabeth. The purpose may be a matter of inference by the court, or it may be a matter of inference by the jury. In Twines' case their respective functions were not distinguished and defined — an omission that has led to much misconception. Here we have to do with the functions of the court, and to inquire whether the facts disclosed by the evidence, made the existence of fraud a legal conclusion. Lowry had filed a transcript of his judgment in Crawford county, against Reynolds & Son, in May, 1846; and in the following August they went in person to the prothonotary's office, confessed judgments to Coulter & Co. and two others, on bonds in the handwriting of Reynolds, the father, and ordered executions. Another bond was put into the hands of an attorney, with instructions to enter it and proceed. On these judgments executions were issued and levied the next day but one. Now from this, there is no legal inference that the purpose was not to prefer these creditors, but to delay their competitors; and the case is not within the purview of the 13 Elizabeth by legal inference, though a jury might find it to be so by inference of fact. It is urged, however, that it is marked with such precipitance and sweeping disposition of the property, without the knowledge of the parties to be benefited by it, as to call for proof that Reynolds & Son were actually indebted to them. But is the suspicion created by the circumstances to be disposed of by the court or by the jury? In urgent cases, before the statute which prohibited preferences by general assignment, the execution of the instrument was often as precipitate, and its provisions always as sweeping; yet though the preferred creditors were not present or consulted, no one supposed that those circumstances raised a legal presumption that their debts were covinous or feigned. The statute does not extend to preferences by judgment and execution, which is only a mode of payment; and as there was no legal presumption that the debt of Coulter & Co. was pretended, the judge was not bound on that head to give the instruction required.

But the unamended return to the fieri facias showed that the levy was insufficient, colourable, and void; and the amendment allowed did not essentially vary it. "The above levy," it was added, "was taken from a schedule given me by defendant's clerk. I did not see the property at the time or since. I was likewise ordered to proceed no further in the case." According to Wood v. Vanarsdale, 3 Rawle, 401, there was no levy at all. What we call a levy is a seizure — in England an actual one — but an officer cannot seize what is not within the range of his view. True, it was held in that case that a levy is good if the property be within the power and control of the officer, provided it be followed up by possession within a reasonable time, and in a manner to proclaim the fact. In this, the property was at no time within the sheriff's grasp; and so far was he from having taken possession of it, that he left it in the hands of Reynolds & Son, the debtors, to be dealt with as their own in the ordinary course of their business. In Trovillo v. Tilford, 6 Watts, 468, it was ruled that though actual seizure is generally necessary, the defendant may dispense with it for his accommodation; and that the dispensation is good ground to found an action of...