Wellington v. Sedgwick

Baldwin, J., delivered the opinion of the Court—Terry, C. J., concurring.

Trespass for taking certain goods.

The defendant justified as Sheriff, claiming that he had execution against Stevens and Markley, and that these goods were, at the time of the levy, their property, or subject to the levy. The case was tried [474]by a jury, and the errors assigned were instruction given and refused by the Court. There was proof of execution at the suit of one Rand against Stevens and Markley, levied on these goods, and that the execution was afterward set aside by the Court for irregularity. The goods on this levy were put in the hands of a receiptor (or keeper). After the writ was set aside, another issued winch was levied on these goods. But before the issuance of this last execution—on the twenty-seventh of November—these defendants executed a bill of sale of the goods levied on, to plaintiffs. The last execution issued on the twenty-eighth of June, 1858, and was levied on the goods sold to plaintiff, and also upon certain other goods bought subsequent to the sale by the plaintiff.

A demand by the plaintiff was made on the Sheriff, January 2,1858, and refused. Wellington was the receiptor, and had the possession, or claimed to have the possession of the goods, at the time of his purchase, and of the levy of the last execution; and these goods were with other goods in the former place of business of Stevens and Markley—these last having been bought, as it was claimed by Wellington, of other persons since the levy of the first execution. No notice or description of these last goods, nor any designation of them, was given by Wellington at the time of the levy or before the bringing of the suit.

The first execution was set aside on the ground that there was no seal. No appeal was taken from that decision, but it appears to have been acquiesced in, and a new execution issued and levied.

The Court instructed the jury, “ if the jury believe, from the testimony, that the agreement between Stevens and Markley, the vendors of the plaintiff, was, that the plaintiff was to pay certain of the debts of his vendors out of said goods, then that such sale as against the other creditors of the vendors is fraudulent.” This is not the law, as was held in Stanford v. Dana. To constitute an assignment within the insolvent law, there must be a trust in favor of the assignor or third persons.