
    Farrington and Smith against Sinclair.
    Where acredei°‘anVexécu" prope]iy°ofhis isting’ 0fCOná ponderousartioie not easily removable and allows it to continue in his possession, this is not, per se, ihe execution fraud’uimt^so property liable under a' ju.tior execution against the same debtor; but if the creditor permit the sume the proprewood,b™if suspfcion“d fof fraud; and to prove thefraud, the creditor in the junior execution may produce evidence of a permission given to the debtor to use other property levied upon at the same time.
    If the officer who made tne first levy, brings an action of trover against the parties who were engaged in the second levy, they may show circumstances of fraud to defeat the action, equally as if it had been brought by the creditor himself.
    IN ERROR, on certiorari to a Justice’s Court.
    The defendant in error, brought an action of trover in the court below, against the plaintiffs in error, for taking a quantity °f firewood which had been levied on by the plaintiff below, who was a constable, by virtue of an execution 1 ] v jn favour of one Caszuell, against one Peter Payne, and . 0 J which was afterwards levied on by the defendant Smith, a . . constable, under a junior execution, in favour of the de~ fendant Farrington, against Payne. At the trial, it was proved that the plaintiff having levied on a wood-pile, at Payne's door, Caswell, the judgment creditor, told Payne's Family that they might continue to use the wood for fuel jn Payne's tavern, for four fires. They continued to use the ° 7 J wood, for ten days, or a fortnight, when the defendant Smith , . levied under Farrington's execution upon such of it as remained, and carried it away. In order to show fraud in the prior execution and levy, the defendants below offered to prove that Caswell gave permission to the family of Payne 
      to make use of other property levied on at the same time with the wood; hut the evidence was objected to, and ex-eluded by the justice. A verdict was found for the plaintiff below, on which judgment was given.
   Per Curiam.

The mere omission, for a few days, to remove the wood, it being a ponderous article, was not, per se, sufficient evidence'of fraud; but the permission given by Caswell, the creditor, to consume it for four fires, in Payne’s tavern, excited a just suspicion, that the proceeding was merely to cover the property; and after such a foundation was laid, the justice ought to have admitted the other evidence offered by the defendants below. It is no answer to say, that this was an action by the constable who levied, and that the fraud, if any, must be imputed to Caswell. If the real design of Caswell was to protect the property of Payne against other creditors, he shall not succeed in that attempt, by employing the constable as an instrument of his fraud.

Judgment reversed.  