
    Marcus Hilzheim vs. Wesley Drane.
    No creditor but one who has a lien by judgment, or otherwise, can attack a sale and transfer of personal property as fraudulent; the right of the owner to sell is indisputable if no fraud mingle in the transaction ; it is not necessary that the lien should exist at the time of sale; if it be subsequently acquired on a debt that existed at the time of sale, the latter may be attacked.
    
      Therefore in an action of replevin, it is not competent for the defendant to show himself a creditor by bill of exchange of the person who sold the thing sued for to the plaintiff, with the view of attacking that sale as fraudulent.
    Where a creditor, whose claim has not yet been reduced to judgment, supposes his debtor has made afraudulent disposition by transfer of his effects, he has no right to seize and hold the property thus transferred, by way of getting a security for his debt.
    In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.
    This was an action of replevin, instituted in the circuit court of Madison county, by Marcus Hilzheim against Wesley Drane, under the act of 1842. The plea was not guilty.
    
    The plaintiff proved on the trial that he had purchased the barouche and horses for which the action was brought, of one P. D. Hilzheim, that he had the property in possession under the purchase; that Wesley Drane had taken the barouche and horses.from him, some time in 1842, subsequent to the purchase of P. D. Hilzheim. Drane, offered in evidence a bill of exchange, or draft, drawn by Thomas Latham, on, and accepted by P. D. Hilzheim, for |367^9¶, to the reading of which to the jury, the plaintiff’s counsel excepted. The court overruled the objection, however, and permitted this bill of exchange to go to the jury.
    It is not deemed necessary to set out more of the case; nor any of the instructions, in view of the opinion of this court.
    The jury under the proof and instructions given below found for the defendant, and the plaintiff sued out this writ of error.
    
      D. W. Adams, for plaintiff in error.
    Besides the points made on the instructions, contended,
    1. That this instruction of the bill of exchange could only tend to confuse the jury. The court should have rejected it. It is well established, “that the admission of improper testimony to the jury when objected to at the time, is irregular, and good grounds for reversal and a new trial. Marquand v. Webb, 16 Johns, 89; Osgood v. Manhattan Co., 3 Cow. 612; 2 Hall’s Rep. 40 ; Graham on New Trials, 239-241; Bolvun V. Taylor, 6 Cow. 313; Foster v. Smith, 10 Wend. 377.
    2. That its introduction was illegal, unless the practice was to be introduced and sanctioned that one holding another’s, or, as in this case, a third person’s obligation for money, could seize on that other’s property and satisfy himself; it could be justified on no other ground.
   Pee Cukiam.

This was an action of replevin for a carriage and pair of horses, in the circuit court of Madison county.

An exception was taken during the trial, to the admission of a bill of exchange in evidence, drawn on P. D. Hilzheim, and accepted by him. He had been the previous owner of the carriage and horses, and had sold them to Marcus Hilzheim. The testimony could only have been offered to show that the sale was fraudulent.

No creditor but one who has a lien by judgment or otherwise, can attack a sale and transfer of personal property as fraudulent. The right of the owner to sell is indisputable, if no fraud mingle in the transaction. It is not necessary that the lien should exist at the time of the sale, if it be subsequently acquired ; the sale may be impeached for fraud, if the debt existed at the time of the transfer.

If there be no right in law and by suit to set aside the sale under the circumstances disclosed in this case, a party cannot take the remedy into his own hands, and seize and hold the property. Such a course would jeopardize the order and harmony of society.

For the improper admission of this testimony, the judgment will be reversed and new trial awarded.

From the inartificial manner in which the record is made out, it is not possible to say what charges were given, or what refused by the court. Indeed it states that some were both given and refused. In this state of things, we will not remark upon them, as there is really nothing intricate in the law on the subject.

Judgment reversed and new trial granted.  