Wilbur v. Strickland

The,opinion of the court was delivered by Smith, J. The defendant in error brought an action of trespass in the Court of Common Pleas of Bradford county,, against Reuben Wilbur, the plaintiff in error, for taking, seizing, and carrying away his goods, of the value of two hundred dollars. A verdict and judgment were rendered for-the plaintiff below; and in the course of the trial, it appeared, that Reuben Wilbur, the defendant, (while sheriff of that county;) had) (by virtue of a Fieri Facias, issued upon a judgment obtained by Eason Baily against John B. Farr,) levied, by a deputy, on personal property, claimed by Amos Strickland, the plaintiff. The deputation from sheriff Wilbur, dated on the 26th of January, 1827, was to execute the Fieri Facias at the risk of Eason Baily, plaintiff in the execution. Amos Strickland, the plaintiff, offered to prove, that the' deputy., professing to act under the authority of the deputation and execution, committed a trespass in taking his property; to which offer the defendant objected, on the ground, that as the deputation was a special one, Reuben Wilbur, the defendant, was not liable. The court, however, admitted the evidence, which forms the first bill of exceptions, "and is now assigned for error. The evidence was properly admitted, for it has been;settled, that if on a Fieri Facias against A. a bailiff takes the goods of B., trespass lies against the sheriff, and for this I refer to 2 Bl. Rep. 832,, and Hazard v. Israel, 1 Binn. 240. See 3 Wils. 309, and Dougl. 40, where it is expressly so decided. For all' civil purposes, the sheriff is answerable in an action of trespass for the conduct of his deputy. Indeed, on the argument, the counsel for the plaintiff in error did not. press this objection. ' ,. ‘ - The plaintiff below claimed the property'.in question, “ under a transfer to him from John B. Farr, and as security to him for having signed an obligation with John B-.Farr. for about seventy dollars. If he, Strickland, should have to pay the debt, the property to be his absolutely;” and he alleged -that he did pay it. On the trial, the- defendant having proved, by many witnesses, that John B. Farr continued in possession of the property; used it as his own; repeatedly said it was his; exercised every act of ownership over it; traded with the horses in Í826; often offered to trade them away; did exchange one of them; and, in the presence of the plaintiff) Strickland, after the transfer, said the horses were his own, which was not denied by Strickland; and, having, moreover, proved by Samuel Roberts, that John B. Farr had purchased the horses, wagon, and harness, from him, some time before the sale, or transfer; further, offered to prove by Roberts, 11 that when he let John [460] B. Farr have the horses, wagon, and harness, Farr said, that ho had a particular friend on the creek in whose possession he was going to put the property, to keep it out of reach of his creditors, and that that friend was Jlmos Strickland/” to which offer.-the plaintiff’s counsel objected, and the court sustained the objection, and rejected the ■ evidence. • This is now also assigned for error. In Reitenbach v. Reitenbach, at .the last May Term, for the Lancaster district, this court decided,* that the declarations of a party, after establishing, or proving a combination to do an illegal act, are not only evidence against the party making such declarations, but are also evidence against all others of the combination, who áre made equally responsible for the consequences. In principle, then, the case referred to is decisive of the present. We think the evidence ought to have been admitted, It would have been, if proved, important evidence to show how the matter really was, and-it.was calculated to prove in what character the goods were placed in the possession of Strickland. It is true, that subsequent declarations'by a party to a sale, or transfer,of property, which go to- take away a vested rights aré not admissible evidence. But this is not the case here; the evidence was offered to show, that thé transfer to Strickland was entirely colourable, fraudulent and void; and this too, after the-defendant had proved, by a host of witnesses, that the property continued with John B. Farr,' nearly in the same way, at least, that he occupied and used it as his own, after, as before the sale, and that he exercised over the property every act of ownérship of which it was susceptible; in short, that he used it after the transfer as he had done before, Under such circumstánces, the evidence was certainly competent, and should have beep permitted to go to the jury. After a transfer of personal property, the possession thereof should be entirely and exclusively by the vendee, and should be given up to him by the vendor; if bona fide, the vendee becomes, the true owner, and may lend or give it to whomsoever he pleases; but, on a contest, about the property, it would become a question for the jury to say, whether the transfer-was bona fide, a real sale, and whether by it, an actual change of property had been made. I refer on this subject to 5 Serg. & Rawle, 275, and 10 Serg. & Rawle, 426. But on the authority of the decision of this court, in Reitenbach v. Reitenbach, and the cases there cited, we are of the opinion, that the declarations of JohnB. Farr ought to have been received by the court, and that the judgment must, for this reason, be reversed, and a- venire facias de ntívo awarded. Judgment reversed, and a venire facias denovo awarded. Footnotes [*] Ante, page 362,