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the option to purchase after trial. He did

Gantz v. McCracken. purchase and gave the notes in question Sale-Change of possessson-Fraudfor the purchase moneys, as is expressly

Lien of Execution. stated on the face of the notes. The

L., the owner of an artesian well borer, was indebted transaction was not a bailment, but a con- to M., an employee, and gave him a judgment for the

Afterwards M. threatened to issue an execution, ditional sale, wherein the property was to whereupon L. gave him a second judgment note in pay

ment of the first. Afterwards M. issued execution upon remain in the vendor until the goods were the first judgment, which had not been marked satisfied,

After the levy of the property on this execution, L. sold paid for with a right to reclaim them if the same to G., another employee, who had kuowledge of

the execution. The first execution was set aside and a not paid for, or if the vendor deemed the

second issued, when G. clainied the property. An issue

was formed under the Sheriff's Interpieader's Act, G. notes taken for the purchase moneys in- being plaintiff and M. defendant. Upon the trial of the

case these facts were proven, and also L.'s efforts to sell secure.

the property the fact that G. paid no money for it, that

Li's contracts were all completed, and that there seemed In the case of a bailment, the owner or

to be no apparent change in the appropriation of the pro

ceeds of the work and labor done for parties who en bailor is entitled, as a rule, to the goods as

gaged the machine. The jury found for the plaintiff

.

The Court (Gibson, A. L. J.) set the verdict aside, as against everybody, but, in a conditional being against the weight of the evidence. sale such as this, where possession is given Rule for new trial. to the purchaser, the right of reclamation,

This is an issue directed by the court while good as between the parties, cannot

under the Sheriff's Interpleader Act, to be exercised against execution creditors of determine the ownership of certain propthe vendee or bona fide purchasers from

erty levied upon under fi fa, No.40, April him, without notice of the agreement- Term, 1883. The material facts are these : This case cannot be distinguished from

Samuel M. McCracken held a judgment those referred to and comes precisely against James G. Ludwig for $639.00, on within the rulings there made. See also

which a fi fa to August Term, 1882, was Krause v. Commonwealth, 9 W.N.C. 61. issued. The plaintiff stayed the writ at

The question was raised, on the argu- the instance of the defendant, and subsement, whether the circumstances attend- quently took from him a promissory note ing the sale of the property by Samuel for $651.00 with warrant of attorney to Byers to Gheen and Robert Byers were confess judgment, in payment of the

, such as to take from the plaintiffs the amount due on said judgment, but the right of reclamation as against them. We judgment remained unsatisfied on the rehave no doubt on this point. They were cord. innocent purchasers for value, and the agreement, giving the plaintiffs the right McCracken directed his attorney to "col

Ludwig having failed to pay the note, to retake possession of the property, was

lect the money'' who, not knowing anyfraudulent and void as to them. The fact that, when the replevin was issued, they payment or substitution of the judgment

thing of the note having been taken in , had not actually removed the property

on record and unsatisfied, issued alias fi. from the premises occupied by Samuel Byers, makes no difference. They had Ludwig's property, consisting of a porta

fa. to April Term, 1883, under which

. parted with their money on the faith of ble steam engine and machinery for borhis ownership of the goods and had be- ing artisan mills, was levied upon. Gantz come the purchasers of it, and, so far as

was an employee of Ludwig, at the time concerns the plaintiffs, removal from the of the levy, working by the day. Ludwig, premises was not necessary.

immediately upon the levy being made,

tried to sell Let judgment be entered in favor of the

the property seized.

He failed to get a purchaser for it, owing defendants, Robert Byers and Francis H.

to the fact that it was in the custody of Gheen, and that they have return of the the Sheriff, as was proven at the trial

. goods irreplevisable.

He then applied to the Court for a rule to

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show cause why the fi fa should not be was set aside at 10:50 A. M. and fieri set aside, alleging that it was void. facias. No. 40 April Term, 1883, was

Pending the rule he sold the property issued on the same day at 11:10 A. M., levied upon to Gantz, the plaintiff, in this twenty minutes afterwards. Now the issue. No money was paid by Gantz, at question whether the first execution was the time of the alleged sale, but he gave a lien or not, or whether there was any Ludwig his promissory notes for the pur- lien upon the property at all until the chase money. The sale was made Feb.23, second execution issued at 11:10 A. M., 1883; on the 26th of the same month the on the 26th of February, does not effect rule was made absolute. McCracken en

McCracken en- the bona fides of the transaction; but the tered judgment on the note for $651. knowledge of this plaintiff of the first On the same day the alias fi fa was set levy, which was pending at the time he aside, and a fi fa was issued at once and bought the property as he alleges, on the the same property levied upon. The 23d of February, the stopping of work property was in Hellam township, about at the time of the first levy, and the efforts eight miles from York. The lien of the to sell by Ludwig, are facts bearing upon fi fa attached at 11:10 o'clock A. M., Feb- the question of a fraudulent intent in the ruary 26. Gantz went to take possession sale. But in addition to this and the facts of the property about 6 o'clock P. M. of and circumstances surrounding the transthe same day. Upon his claim to the prop- action, such as the plaintiff being an emerty the Sheriff's interpleader intervened. ployee of Ludwig and being possessed of N. M. Wanner and John Blackford of the working of the machine afterwards

no money or property whatever, the fact for plaintiff.

by both of them, whether they changed James Kell and W. C. Chapman for their relations to each other by the master defendant.

becoming the servant and the servant the January 12, 1884. GIBSON, A. L.J.- master, or whether the contracts for work, With regard to the material facts of this were Ludwig's or the plaintiff's, or which case there is no conflict of testimony and of them claimed or had the ostensible no question as to the credibility of wit- possession of the property.—all this con

The whole case is before us with joint operation of the machine and maout dispute except as to the conclusion to chinery, constituting the property in quesbe drawn from the facts as proved. tion, and the manner of the appropriation

At the time of the transaction between of its earnings, adds to the weight of the Ludwig and the plaintiff in this issue, on evidence tending to show a fraudulent the 23d of February, 1883, which is claim- transfer of its ownership. And here pered to be a bona fide purchase and change haps there was an inadequate conception of ownership of the property in question, of the case by the jury. the process upon which the property was If Mr. Ludwig had relinquished all *then held was void. The question, there- concern whatever in the property, and fore, of a fraudulent sale of the property had gone away from this neighborhood, arises just as though the transaction was the bona fides of the transaction could still done in contemplation of an execution have been questioned from the circumagainst it. But, nevertheless, the prop- stance immediately surrounding the transerty was held on the execution issued on

action. But here arises the question as to 8th of February, though subsequently set

the weight of evidence. The machinery aside on the 26th of the same month.The property was in custodia legis, suffi- had been bought by Mr. Ludwig on credit ciently to prevent a transfer by delivery. from this defendant, who is plaintiff in the Fieri facias, No. 27, April Term, 1883, pending execution, and the plaintiff in

nesses.

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this issue has also shown his alleged pur- the issue as to actual fraud. chase to have been upon credit, with the

After the transaction at the Pennsylvaexception of a small amount of money nia House, on the 23d of February, as due him as employee. Ludwig's con- already stated, the property was not retracts as former owner are carried out, his leased from the custody of the law until debts are paid, he remains with the ma- the 26th of February, and twenty minutes chinery, which he worked himself, as he after that release another execution of said, “beause he knew better about work- McCracken seized the property. Hence, ing the machine than Gantz did." The of course, the plaintiff in this issue could payments on account of the purchase, as not get possession of the machinery in claimed by plaintiff, were from the earn- question, except upon a claim of property ings of the machine. In other words and a bond given for its forthcoming to there is no apparent change in the appro- meet the demands of the execution issued priation of the proceeds of the work and by the defendants in this issue. Any eflabor done for parties, who engaged the fort in order to take possession by Gantz machine, from what it would have been were of course idle till that claini was had Ludwig remained owner, while the made and bond given. There is, then, no man from whom Ludwig bought, this de- such question of fact in the case. If it fendant, is prevented by the arrangement was a bona fide sale, the plaintiff is entifrom collecting his claim.

tled to possession of the property by law There seems to be no conceivable ob

as soon as he can get it. The same efforts ject, no reason why Mr. Ludwig should to get possession, whether real or not, have made sale to the plaintiff of this would have been made whether the sale property, or why he should have parted

was bona fide or not, and cannot have any with the possession of it in any way, ex- bearing upon the question of fraudulent cept for the purpose of preventing Mr.

intent. McCracken from making his money out This is an issue directed by the court to of it. The only question for the jury to determine the ownership of certain propdetermine was whether the plaintiff was erty levied upon. It is not an action for cognizant of that intention and abetted the recovery of goods involving merely him in it.

the question of title. It involves the But apart from the question of the rights of an execution creditor depending weight of evidence, I think, some confu- upon the solution of a question of alleged sion found its way into the jury box, aris- | fraud. ing from the evidence as to possession Under all the evidence in the case, the taken, which can, in my opinion, concern court is not satisfied with the verdict and, only the question of legal fraud. A ques- therefore, the rule for a new trial is made tion of fact went to the jury along with absolute. that of fraudulent transfer, as to whether such possession was taken of the property

Judgment-Married Women.-A judgas the circumstances admitted of. That

ment confessed by a married woman can question apparently arose because the court could not pronounce the want of be enforced only in the single instance immediate delivery of possession a legal where, when a conveyance is made to fraud on account of those circumstances, her, it forms part of an agreement under and hence it was for the jury to say which she takes land subject to the conwhether there was a sufficient delivery to dition that she shall pay its price. In save it from being a legal fraud.

every other instance it is void.-Vandike such an issue of fact has no bearing upon v. Wills, 14 Pittsburgh Legal Journal 217.

VOL. IV.

No 47

the trial.

fied.

M. declared uuder oath that he understood what the

YORK LEGAL RECORD. It is also said that Jacob Myers, another

juror, did not understand English sufTHURSDAY, JANUARY, 24 1884.

ficiently well to serve.

And we are further asked to submit QUARTER SESSIONS.

the question of defendant's guilt to an

other jury because a number of experts Com. v. Stokes et. al.

have compared the alleged forged signaCriminal LawNew Trial-Incompe

tures with other signatures admitted to

be genuine, and have pronounced in tency of jurors.

,

favor of the genuineness of the alleged On a motion for a new trial, the defendant failed to produce proot that the alleged disqualifications of some simulated signature. of the jurors was unknown to him or his counsel during

HELD, That the motion must be dismissed, because not properly supported by evidence.

It is to be observed in the first place, N. was a resident at the time his name was put in the that an important part of the defendant's jury wheel; he moved to Baltimore, with the intention of remaining if he liked it, if not, to return. He did return, proof has been entirely omitted. There and served as a juror HRLD, That he was not disquali

is absolutely no evidence before us of

which we can take notice, that the defenwitues es testified to and what the Court said in the charge to the jury. HELD, To be properly qualified to dant and his counsel were ignorant of the act as a juror. The duty of comparing genuine signatures with the alleged disqualifications of jurors, at the alleged forgery, is exclusively for the jury.

time the jury was empanelled or pending Motion for a new trial.

the trial. In the first reason filed, the The reasons for the new trial are given

defendant has sworn that nothing was in the Court's opinion.

known of Newcomber's disqualifications

at that time, but that was necessary to H. W. McCall, W. C. Chapman and

obtain the rule, and cannot stand for proof H. L. Fisher, for motion.

of the fact, now that the rule is before us E. D. Ziegler and Blackford & Stew for final determination.

for final determination. In the matter of art, contra.

the juror Myers, it is nowhere alleged January 21, 1884, WICKES, P. J.—This that either defendant or his counsel were defendant was tried and convicted in ignorant of his imperfect knowledge of October, 1882. In January, 1883, we

English at the time he was sworn. The granted a new trial, because it was shown burden of this proof is distinctly upon that a witness for the Commonwealth had

the defendant, and a material part of it said while the trial was in progress, to

all is, that knowledge of these facts came one of the jurors that he could have told to the possession of himself and counsel a good deal more about defendant's char- subsequent to the trial. We might thereacter, but was afraid.'* Fearing the af- fore content ourselves with dismissing fect of such a statement upon the juror's these reasons as not properly supported mind, we gave the defendant another op- by evidence, for if these facts were known portunity to have his case passed upon by either defendant or his counsel during by an impartial jury. Now, after, a sec

,

the trial, their silence then would operate ond and very protracted trial has been as a waiver of their right to be heard now. completed, we are asked to make ab

But on account of the serious charges solute this rule for a new trial, chiefly be against this defendant, we have examined cause of certain disqualifications of two the reasons assigned, as if before us jurors who sat in the case.

upon proper proof, and we It is alleged that I. K. Newcomber was strained to say, they have not impressed not a qualified elector at the time he was us as constituting sufficient ground for a selected, drawn or served.

new trial. First as to Newcomber's al*See Com. v. Stokes et al., 3 YORK LEGAL RECORD, 220

leged loss of domicil here; it is con

are

conOwn

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ceded he resided here when his name was counsel, to say nothing of our placed in the wheel ; his removal to Bal- charge. That they differed in opinion timore was rather an experiment, accord- from those who have been produced as ing to his own account—if he liked the experts, is not a good reason for setting business and the place he intended to re- aside a verdict which two juries have main—if he did not his purpose was to concurred in pronouncing. return. He left a considerable part of We therefore overrule the motion for his furniture here in the house he had oc

a new trial. cupied, and after remaining in Baltimore about two months he was not successful

COMMON PLEAS. or not pleased and returned here again.

C. P. of

Luzurne County. It has been repeatedly decided in this State and elsewhere, that residence is a

Luzurne County v. Galland Brothers & Co.

Manufacturing machinery affixed to the premises by question of intention, and that is a con

the lessee, is subject to taxation as real estate. clusion of law from the facts in each par- Case stated. ticular case. But it is uniformly held

January 7, 1884. WOODWARD, J.-It that the intention to reside outside the

appears from the facts submitted to us in State must be fixed and permanent, be

the case stated, that the defendants are fore the domicil is lost here and acquired manufacturers, and, as such, are the ownelsewhere. We can gather no such in

ers of certain machinery upon which, for tention from the evidence submitted. the year 1883, a county tax has been asNor does the alleged disqualifications of

sessed. The question presented is, the juror (Myers) amount to any disqual- whether the machinery of the defendants ification at all when tested by his own

is taxable, as real estate, for county purdeposition. He had declared under oath,

poses. that he understood what the witnesses testified to and what the Court said in Fitzpatrick, and have been assessed with

The house and lot are owned by one charging the jury. He obviously belongs

taxes against him as owner. The premto that large class of our population of

ises, however, are leased to the defendGerman extraction, who, while not

ants for manufacturing purposes, and the familiar with all the niceties of the Eng machinery in question was set up and is lish tongue, are sufficiently informed of its meaning for the practical purposes of being operated by them as already stated.

The Act of Assembly of 15th April, our jury service.

The bank officers and others, whose 1834, section 4 (Purd. 1359) provides, that depositions are now before us, with few “manufactories of all descriptions." shall

' exceptions, testified at both trials, that

be subject to assessment as real estate. they believed the signature of Manifold

In the case of Patterson v. Delaware to be genuine and not simulated; further county (20 P. F. S. 381), it was held that, than this they could not go and con

under the 32d section of the act of 29th fessedly the evidence now offered of a April, 1844, machinery was properly comparison of hands by them is not legal taxed as real estate. This section, so far evidence and could not be used if a new

as manufactories are concerned, does not trial was granted. This duty of compar- appear to be more definite or specific than ison of the alleged forged instrument

the Act of 15th April, 1834, to which we

have already referred. with the test papers admitted in evidence

The case of Patterson v. Delaware is distinctly for the jury, and their duty county, however, differs from the present and right to make it carefully, was greatly one in this, that the machinery upon impressed upon them by defendant's which the assessment was made, belonged

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