
    Shannon and others against The Commonwealth, the use of Lazarus.
    on^a Sheriff’s* official bond, ¡mayPassignff ofthe'coníi63 tion of tu« jury isswom.6
    Where a witness swearsupon the voire dire, that he does not know-uthether he is wi* terestedinthe sISlrnot, his interest may be proyed by other
    r Sheriff’s offiimmediately after he re-^ a levy on pro-the plaintiff tion^’without of the writ,
    ecup'd when the grantor is than the his whoiíestate, and just after one creditor has obtained judgment against him, containing in the first place an absolute conveyance of property, in consideration of which the grantor agrees to pay a valuable consideration, but followed by a proviso, by which he is permitted to relinquish the bargain at any time he may choose, and on a re-deliverv of the property, receive from the grantee any money which he may have expended on it, is fraudulent against creditors.
    Where a parol transfer of property is attended with suspicious circumstances, the jury are the proper tribunal to determine, whether it was fraudulently entered into, with a view to defeat creditors.
    In Error.
    THIS was a suit, brought in the Common Pleas of Northumberland county, in the name of the Commonwealth, for the use of Peter Lazarus, against William Shannon, She-°f tbe said county and his sureties, on Shannon’s official bond. The breach assigned in the condition of the bond wasi that Shannon refused to execute a writ of fieri facias, issued out of the Court'of Common Pleas of the said county, _ on a judgment obtained by Lazarus against a certain fames Lazarus directed the Sheriff to levy on a printing ^ «ress, the property of Fox; but it was claimed by one Seit- > ztnger9 who indemnified the Sheriff, in'consequence or which be returned, nulla bona. This action was commenced soon after the Sheriff’s' refusal to levy according to the plain. . J ° r tifFs instructions, and before the return of the fieri facias9 faring the trial of the cause, the plaintiff asked permission to assign another breach in the condition of the bond, viz. that William Shannon, having arrested the said Fox on a caPtas ad satisfaciendum issued at the suit of I.azarus, suffered him to go at large. To this amendment the counsel for the defendants objected, but the Court permitted it, and an excepwas taken to their opinion. Thomas Painter, who was surety in the bond given by Seitzinger to indemnify the Sheriff, was cabed as a witness by the defendants, and examined by on the voire dire, when he answered, “ That he did not knozo -whether he was bail to the Sheriff or not. lie was not positive, and did not recollect executing the bond.” The plaintiff then proposed to prove by other evidence, that he was a party to the bond; to which the counsel for the defendants objected. The Court permitted the evidence to be given, and sealed a second bill of exceptions. In order to prove that the property on which the Sheriff had been directed to levy, did not belong to Fox, the defendants produced a deed, dated December 17th, 1818, by which James M. Fox conveyed to Jacob Seitzinger, all the establishment of a newspaper called “ The Times” together with the press, types, and all other materials thereto belonging, and all the outstanding debts, amounting to 1120 dollars 45 cents, in consideration of which, Seitzinger covenanted to pay him 750 dollars on the execution of the deed, and 150 dollars more in fifteen months afterwards. The deed contained a priviso, that in case “ Seitzinger should not at any time afterwards be willing to retain the property, he might make sale of it, and if, it should be sold for 1000 dollars, Fox should allow Seitzinger ISO dollars for his bargain or trouble, and if a sale should be effected for more than 1000 dollars, all above that sum should be a nett gain to Seitzinger.” And further, that if Seitzinger should not be inclined to keep the establishment, &c. he should be entitled to relinquish it; in which case, Fox should account for, and pay back to him, all monies which he had paid or advanced in consequence of the agreement. It appeared that very few of the outstanding debts could be collected. After the execution of the written instrument above mentioned, a parol agreement was entered into, by which Seitzinger was to retain the printing establishment, &c. as his absolute property, in consideration of which he was to, pay one hundred dollars to Fox, and to discharge his debts to the amount of 400 dollars, which was accordingly done. There was no schedule shewing the creditors whose debts were to be paid, nor the amount of their debts, and it was proved that Seitzinger had several times declared, that the plaintiff should never get a cent of his debt.
    In their charge, the Court delivered the following opinion to the jury, to which the counsel for the defendants excepted ;■
    “ It was the duty of the Sheriff to make a levy on whatever interest Fox had in the press, and if by his neglect to do so, the plaintiff lost his money, he would be liable for the loss.”
    The defendants’ counsel excepted likewise to the opinion of the Court, delivered upon various questions proposed to them, of which it is necessary to mention only the two which follow :
    1. That if before the writ was delivered to the Sheriff, the property at the printing office was vested in Seitzinger, the Sheriff 'was not bound to take it in execution; and having until the return day of the writ to execute it, this suit was brought prematurely.
    To this preposition the Court answered, that if before the execution was delivered to the Sheriff, the property bona fide belonged to Seitzinger, and was not conveyed to him with a view to prevent the plaintiff from obtaining his debt, the Sheriff was hot bound to levy upon it. If, from the evidence, the jury are satisfied that at the commencement of this suit, the Sheriff.had refused to make a levy, the action may be maintained, though commenced before the return of the. writ.
    2. That the article of agreement of 17th December, 1818, and the parol agreement given in evidence, were not fraudulent ; and if Seitzinger proceeded fairly to carry the latter into effect, received possession of the property, and paid the creditors known to him when he entered into it, the property was transferred to him.
    The answer of the Court to this point was, that the article of agreement was not an absolute sale, and that Fox’s interest in the property might be levied upon. Whether the subsequent bargain was fraudulent or not, was a fact for the jury. If fradulent, it was void, and the property was liable to be levied upon by the Sheriff, whose refusal to levy upon it, would make him answerable to the plaintiff. But if the bargain were bona fide, and not with a view to defraud the plaintiff, it would be good, and the Sheriff would not be answerable.
    On the argument in this Court, several points were discussed by the counsel, which are not noticed in the opinion of the Court. They are therefore not stated here.
    
      
      Bellas, for the plaintiffs in error.
    3. In admitting evidence to prove the interest of a witness who had already been examined on the voire dire, the Court below violated a well established rule of law, that where a party resorte to that mode of testing the interest of a witness, he must abide by it.
    2. The first breach assigned by the plaintiff was, the Sheriff’s not executing a writ of fieri facias. The new breach, which the Court permitted to be assigned, after the commencement of the trial, was that the person against whom the fieri facias had issued at the suit of the plaintiff, had been arrestedjon a capias ad satisfaciendum, and permitted by'the Sheriff to escape. This was quite a new cause of action, and therefore ought not to have been permitted to be introduced. 5 Binn, 51.
    
    3. The written agreement was an absolute sale, though voidable by Seitzinger at any time within fifteen months after its date, when the last .payment was to be made. It then become absolute as to him, as well as regarded Fox, who never had the privilege of annulling the sale. One of the stipulations was, that if the press, &c. sold for 1000 dollars, Fox was to allow Seitzinger 130 dollars for his trouble, and Seitzinger was to pay him the overplus, after deducting his own debt; but this overplus could only be recovered in ah action of covenant, the property in the thing itself, having passed out of Fox’, and'vested in Seitzinger, as whose property it might have been taken in execution. Property may be divested, though the sale is conditional, 14 Johns. 167. Fox therefore had not an absolute property in the goods, capable of being sold, which must exist in a defendant' to authorise the Sheriff to levy upon them. 2 Bac. Ab. 715, Execution C. 4.
    4. The parol agreement was not a relinquishment of the written contract. It was merely an alteration of it, as re. garded the price, induced, by SeitzingeFs discovery that the outstanding debts could not' be collected. The price was fairly paid by the payment of one hundred dollars to Fox’, and the discharge of his debts to the amount of 400 dollars. All the facts were ascertained, and placed beyond dispute, which presented a question of law to the Court, whether or not the transaction was fraudulent ? Where thqre is no dispute about the facts, fraud is a question of law. It is the judgment of the law upon facts and intents. Sturtevant v. Ballard, 9 Johns. 337. 14 Johns. 304. The Court of Common Pleas therefore erred in submitting such á question to the jury.
    
      S. The suit was brought prematurely. As the Sheriff had until the return of the writ to make the levy, he might have levied after the commencement of the action.
    
      Hepburn and Greenough, contra, contended —
    1st. That the written agreement was, on its face, void as regards creditors ; and 2dly. That the transaction, under all its circumstances, was fraudulent and void. •
    1. The first part of the written article imports an absolute sale, but it is followed by a proviso authorising Seitzinger to relinquish the property at any time he pleases, and to pay Fox what it may sell for, after deducting all his expenses, and ISO dollars for his trouble. If it sold for more than 1000 dollars, he was to keep the surplus himself. This was in effect nothing more than a power of attorney to sell. It vested no absolute property in Seitzinger, but tended directly to delay and defeat the' creditors of Fox.
    
    2. The transaction was fraudulent under all its circumstances. Seitzinger elected to avoid the written article, and took the property under a parol agreement for 350 dollars less than he had before agreed to pay for it, and by this new arrangement, Fox secured 100 dollars to himself. The creditors had no remedy against Seitzinger, but were placed entirely at his mercy. There was no engagement to pay any particular amount to any particular creditors. He was to pay them as he ^ pleased, and he persisted in declaring that the plaintiff should never get a cent. There was therefore no error in the charge. The Judge said the written agreement was not an absolute one, and submitted to the jury whether on the facts given in evidence, the transaction was not fraudulent. If it was, Fox retained a property on which the Sheriff was bound to levy. Enough was proved to authorise an inference, that .Seitzinger made the purchase with a view to defeat the plaintiff’s recovery of his debt. If such was the intent, the transaction was fraudulent, notwithstanding a valuable consideration may have been paid. Roberts on Brit. Stat. 302. 5 Serg. Rawle, 278. On the whole, it was a proper case for tbe decision of a jury, who would take every thing into view, and give to each circumstance its proper weight.
    3. There is nothing in the objection, that the suit was brought before the return of the fieri facias. It was not brought until the Sheriff had refused to make the levy, which is the foundation of the action. An action for damages for a breach of contract on the sale of goods, may be maintained as soon as the purchaser refuses to take them, though the goods were sol’d on a credit which has not expired. Girard v. Taggart, 5 Serg. & Rawle, 19.
    
   The opinion of the Court was delivered by

Tilghman, C. J. —

The Court had a right to permit the amendment; and the defendants, if they were surprised by it, were entitled to a continuance of the cause, but they did not ask for it. The action was on a bond with collateral condition, and the plaintiff might have assigned as many breaches as he pleased. The amendment was not changing the action. The new breach related to the neglect or nonperformance of Shannon's duty as Sheriff. It has been determined, that under our Act of Assembly, the Court may permit the plaintiff, in an action of covenant, to assign hew breaches, which is the same in principle, as assigning new breaches of the condition of the bond. There was no error therefore in allowing this amendment. The second bill of exceptions, was to the Court’s opinion in suffering evidence to be given, to prove that Thomas Painter, a witness called by the defendant, was interested in the cause. The objection to this evidence is, that the plaintiff having examined Painter on the voire dire, could not resort to other evidence to prove his interest. In general, the rule is so. But the peculiar circumstances of the present case took it out of the rule. Painter answered on the voire dire, that he did not know whether he was interested or not; so that the plaintiff got no satisfaction from him. He had a right therefore to resort to other sources of information. The fact was, that Painter had been security for Seitzinger, in a bond of indemnity to Shannon, for returning nulla bona, on Lazarus’s writ of fieri facias. He was directly interested, therefore, in the event of the suit. But he had forgot his having joined in that bond, or at least he was doubtful of it; and therefore answered, that he did not know whether he was interested or not. It was necessary, therefore, to resort to other evidence; and the Court was right in permitting it.

Several- questions were proposed to the Court by the counsel for the defendants* which are placed on the record, with the answers to them, and errors are assigned in some of these answers.

1. This action was commenced immediately after the Sheriff had refused to levy on Fox’s printing press, and before the return of the writ. The defendants asked, whether this action could be supported before the return of the writ; and the Court was of opinion that it might. Without doubt it might, because the action is founded on the Sheriff’s neglect or breach of duty. It was his duty to levy, as soon as the writ came to his hands and the plaintiff shewed him property to levy on. But this he refused to do; and that was a breach of duty. Nevertheless it lay op the plaintiff to shew, that he had suffered damage ; and this could not be done without proving that the press was the property of Fox, and the plaintiff had lost his debt, or part of it, in consequence of the levy not being made. Whether Fox had any property in the press, was the main, point in the cause. To prove that he had not, a deed of conveyance to Seitzinger was produced; and the second error assigned is, that the Court was of opinion, this deed was not an absolute transfer of the property to Seitzinger, but left an interest in Fox, which was the subject of a levy.

2. The deed from Fox to Seitzinger, contains, in the first place, an absolute conveyance of the printing press, with all the types, and all the appurtenances, and the whole establishment, and outstanding debts, of a newspaper called “ The Times,” printed at Sunbury, in the county of Northumberland; in consideration whereof, Seitzinger was to pay eight hundred and fifty dollars, (seven hundred on the execution of the deed, and one hundred and fifty in fifteen months afterwards ;) but the deed contained also a proviso, by which, Seitzinger was permitted to relinquish the bargain at any time he might choose, and on a re.-delivery of the property, he was to receive from Fox any money which he had expended on it. When it is considered, that the deed was executed after Lazarus .had obtained his judgment, and at a time when Fox was In debt to more than the amount of his whole property, it is evident, that such a transfer was fraudulent against creditors, because it prevented the recovery oí tfieir ‘ debts, without vesting the property absolutely, and for good consideration, in am body else. It has all the appearance of a cover, under which the property of Fox might be protected from his debts. His affairs had come to a crisis. The execution of Lazarus was at hand. But having defeated that, Seitzinger might have returned the property to Fox, or he might have continued to keep it as long as he pleased, subject always to his right to return it, and annul the bargain. Such a mockery of creditors the law yvill not endure. And indeed, the defendants seemed sensible that the deed would not answer their purpose ; and therefore resorted to a subsequent parol agreement, by which Seitzinger was to keep the press as his absolute property, and pay five hundred dollars for it, of which four hundred dollars' were to be applied to pay debts due from Fox, and one hundred dollars to go to Fox himself; and the defendants proved that Seitzinger did pay one hundred dollars to Fox and four hundred dollars to several of his creditors. No doubt the Court was right in deciding, that the deed did not convey an absolute property to Seitzinger, but left an interest in Fox, which was subject to the plaintiff’s execution. As to the parol agreement, the Court left it to the jury to decide, whether, .under all its circumstances, it was not fraudulent, as respected Lazarus. This, the defendants say, ought not to have been left to the jury; and that is the third error assigned;

3. There may be a conveyance of property for good consideration, and yet it may be fraudulent against creditors. If A. has a judgment against B. and is about to take out an execution, and C. purchases the goods of B. at a false price, with the view of defeating A’s execution, the sale is mala fide, and fraudulent as to A.; and he may levy on the goods as the property of B. Now in the transaction between Fox and Seitzinger, there were several suspicious circumstances. Instead of paying eight hundred and fifty dollars, the price fixed in the deed-, no more than five hundred dollars were to be paid by the parol agreement. Then as to paying Fox's debts, to the amount of four hundred dollars, there was no schedule, ascertaining the persons whose debts were to be paid, nor the amount of their debts. Much was left in the p0wer 0f Seitzinger; and in such a state of uncertainty, he compel the creditors to a compromise. But what is very material, there was evidence that Seitzinger several times declared, the plaintiff should not get one ' cent of his debt. I do not see, how, from the evidence, the Court would have been justified in giving a positive opinion, as the defendant’s counsel requested, that there was no fraud in this transaction. On the contrary, it was a case peculiarly proper for a jury. There certainly was ground for a suspicion, that all was not fair towards Lazarus. But there were no decided facts, on which the Court could assume the decision of the case, as matter of law.

These are all the material points in the questions proposed by the defendants’ counsel and answered by the Court. On the whole, I am of opinion, that there is no error in the record ; and therefore the judgment should-be affirmed.

Judgment affirmed.  