and thereby vest in the purchaser the entire property. 21 Wend. (N. Y.) 77.

In a late case, Waddell v. Cook, 2 Hill (N. Y.) 47, an action of trespass was sustained against the marshal, Waddell, for seizing and selling goods of Cook under fieri facias against Bowne, who was a joint owner of the goods with Cook. The court held that though the marshal's authority extended to a total dispossession of both the co-tenants by an execution against one, yet the law denied him the right to sell the entire property. In attempting to do so, though the act be nugatory, yet the law may well treat it as such an abuse of legal authority, as renders him a trespasser ab initio. 2 Kent 351, note b, 4th ed.

We therefore think this action was well conceived, and affirm the judgment.63

The interest of a tenant in common chattels may be taken and sold on execution against him alone. Mersereau v. Norton, 15 Johns. (N. Y.) 179 (1818); Pettingill v. Bartlett, 1 N. H. 87 (1817); Whitney v. Ladd, 10 Vt. 165 (1838); M’Elderry v. Flannagan, 1 Har. & G. (Md.) 308 (1827); Thompson v. Mawhinney, 17 Ala. 362, 52 Am. Dec. 176 (1850); Hopkins v. Forsyth, 14 Pa. St. 34, 53 Am. Dec. 513 (1850); Hayden v. Binney, 73 Mass. (7 Gray.) 416 (1856); Neary v. Cahill, 20 Ill. 214 (1858). The general practice is for the officer to levy upon and take possession of the whole of the common property but to sell only the debtor's interest. Melville v. Brown, 15 Mass. 82 (1818); Reed v. Howard, 43 Mass. (2 Metc.) 36 (1840); Waddell v. Cook, 2 Hill (N. Y.) 47, 37 Am. Dec. 372 (1841); Fiero v. Betts, 2 Barb. (N. Y.) 633 (1848); Ray v. Birdseye, 5 Denio (N. Y.) 619 (1846); Caldwell v. Auger, 4 Minn. (Gil. 156) 217, 77 Am. Dec. 515 (1860); Veach v. Adams, 51 Cal. 609 (1877); Burton v. Kennedy, 63 Vt. 350, 21 Atl. 529, 25 Am. St. 769 (1891). Henderson v. Brennecke, 26 App. Div. 309, 49 N. Y. S. (1898); Spalding v. Allred, 23 Utah 354, 64 Pac. 1100 (1901). Unless naturally severable, Newton v. Howe, 29 Wis. 531, 9 Am. Rep. 616 (1872), see Snyder v. Stehman, 10 Pa. Super. Ct. 639 (1899). And in some states statutes forbid the sheriff from taking a chattel from a co-owner without his consent, in which case the levy may be made without possession. Vicory v. Strausbaugh, 78 Ky. 425 (1880); Willis v. Loeb, 59 Miss. 169 (1881); Richart v. Goodpaster, 116 Ky. 637, 76 S. W. 831, 25 Ky. L. 889 (1903); Heydon v. Heydon, i Salk. 392 (1693).

The principles applicable to cotenancies, were in the early cases, applied to partnerships. Bachurst v. Clinkard, 1 Show. 169 (1691); Chapman v. Koops, 3 Bos. & P. 289 (1802); Johnson v. Evans, 7 M. & G. 240 (1844); Helmore v. Smith, L. R. 35 Ch. Div. 449 (1885), and in America these precedents have been followed by courts. Reed v. Shepardson, 2 Vt. 120, 19 Am. Dec. 697 (1829); Phillips v. Cook, 24 Wend. (N. Y.) 389 (1840); Newhall v. Buckingham, 14 Ill. 405 (1853); Wiles v. Maddox, 26 Mo. 77 (1857); Nixon v. Nash, 12 Ohio St. 647, 80 Am. Dec. 390 (1861); Robinson v. Tevis, 38 Cal. 611 (1869); Smith v. Orser, 42 N. Y. 132 (1870); Clements v. Jessup, 36 N. J. Eq. 569 (1883); Wright v. Ward, 65 Cal. 525, 4 Pac. 534 (1884); Felt v. Cleghorn, 2 Colo. App. 4, 29 Pac. 813 (1892). But the interest acquired by the purchaser is no more than the interest of the execution debtor upon a settlement of the partnership's affairs. United States v. Hack, 8 Pet. (U. S.) 271, 8 L. ed. 941 (1834); Garbett v. Veale, 5 Ad. & El. (N. S.) 408 (1843); Eighth Nat. Bank v. Fitch, 49 N. Y. 539 (1872); Farley, Spiar & Co. v. Moog, 79 Ala. 148, 58 Am. Rep. 585 (1885); Swan v. Gilbert, 175 Ill. 204, 51 N. E. 604, 67 Am. St. 208 (1898); Weber v. Herts, 188 Ill. 68, 58 N. E. 676 (1900). Hence it has been held that the partnership goods can not be taken from the firm for the purpose of selling the interest of a member of the firm. Sanborn v. Royce, 132 Mass. 594 (1882); Russell v. Cole, 167 Mass. 6, 44 N. E. 1057, 57 Am. St. 432 (1896); Levy & Sugar v. Cowan, 27 La. Ann. 556 (1875); Haynes v. Knowles, 36 Mich. 407 (1877); Ernest v. Woodworth, 124 Mich. 1, 82 N. W.

SECTION 3. LIEN OF EXECUTIONS

DUNCAN v. M'CUMBER

SUPREME COURT OF PENNSYLVANIA, 1840

10 Watts (Pa.) 212

Error to the Common Pleas of Erie County.

This was an action of trespass de bonis asportatis, brought by Solomon M'Cumber, the defendant in error, against James Duncan, plaintiff in error. The goods in question were part of the personal estate of Moses Fellows at the time of his decease; and as such were thereupon taken into possession by Rebecca Fellows, his executrix and widow. Upon a judgment obtained against her, as the executrix of Moses Fellows, in favor of James Duncan, the plaintiff in error, in the common pleas of Erie County, a writ of fieri facias was sued out to May term, 1839, directed to the sheriff of Erie county, and delivered to him to be executed on the twentyseventh day of March, 1839, in the borough of Erie; at which place, it seems, that the sheriff, without going to the residence of Rebecca Fellows about fourteen miles from the borough, where the goods then were, endorsed a seizure of them upon the back of the writ, without seeing them, or having them in his power; and without attempting to take the possession of them, until twenty days or more afterwards, when, in the meanwhile, they had come into the hands and possession of the defendant in error, as a purchaser thereof at constable's sale, made under the following circumstances: On the first of April, 1839, an execution was issued by Thomas Greenwood, a justice of the peace of Erie county, against Rebecca Fellows, in her own right, as it would appear by the execution, at the suit of Ezra Thompson, for $70.79, besides costs of suit; also, on the next day, another execution was issued by P. Wells, another justice of the peace of Erie county, against Rebecca Fellows, as executrix of Moses Fellows, deceased, at the suit of Timothy J. Newton, for a debt of $6.20, besides eighty-two cents cost; both of these executions were directed to the constable of Harborcreek 661 (1900); Morrison v. Blodgett, 8 N. H. 238, 29 Am. Dec. 653 (1836); Treadwell v. Brown, 43 N. H. 290 (1861); Garvin v. Paul, 47 N. H. 158 (1866); Deal v. Bogue, 20 Pa. St. 228, 57 Am. Dec. 702 (1853); Reinheimer v. Hemingway, 35 Pa. St. 432 (1860); Durborrow's Appeal, 84 Pa. St. 404 (1877), Pa. Act of April 8, 1873, P. L. 65, P. & L. Dig. (2d ed.) 3572; Hare V. Comm., 92 Pa. St. 141 (1879); Richard v. Allen, 117 Pa. St. 199, 11 Atl. 552, 2 Am. St. 652 (1887); White v. Rech, 171 Pa. St. 82, 32 Atl. 1130 (1895); In re Spackman's Appeal, 4 Pa. Super. Ct. 221 (1897); Jones v. Lawrence (Tex.) 151 S. W. 584 (1912). In England under the act of 1890 (53 and 54 Vict.) ch. 39, § 23, a writ of execution can not issue against partnership property except on a judgment against the firm. But the judgment creditor of a partner may obtain an order charging the partner's interest in the firm and appointing a receiver of his share of the profits. Brown, Janson & Co. v. Hutchinson, L. R. (1895) 2 Q. B. 126.

DUNCAN V. M'CUMBER

695

township, in Erie county, whose name, as it appears, was G. W. Walker. Having them in his hands on the second day of April, 1839; he, by virtue thereof, actually took the goods from the possession of Rebecca Fellows where he found them, and in the course of ten or twelve days afterwards, sold them at public auction to the defendant in error, after giving due notice thereof. The goods, upon the defendant in error's paying for them, were accordingly delivered by the constable to him; from whom the plaintiff in error, in company with the deputy sheriff, afterwards, but before the return day of the fieri facias, took the goods by virtue thereof.

Upon the trial of the cause below, after the evidence was given to the jury, the counsel of the defendant requested the court to charge the jury, first, that the execution in favor of James Duncan and against Rebecca Fellows, executrix of Moses Fellows, deceased, bound the personal property of the deceased, from the delivery of the same to the sheriff. Second, that the levy and sale of the goods by the constable, Walker, upon an execution issued by a justice, and received by the constable after the lien of the fieri facias in the sheriff's hands had attached, did not release the goods from the sheriff's levy and lien; and that notwithstanding the action of the constable, the sheriff was justified in taking and selling the goods upon the fieri facias in his hands. Third, that the execution in the constable's hands, being against Rebecca Fellows for her individual debt, the constable could not levy upon and sell the goods late of Moses Fellows, deceased, in her possession as executrix, so as to release them from the previous lien of the fieri facias, in favor of James Duncan against Rebecca Fellows, as the executrix of Moses Fellows, deceased.

The court in their charge to the jury considered the defendant's first proposition to be correct in general; but denied his second, unless the purchaser at the constable's sale had full notice of the sheriff's claim to the goods under the fieri facias, and his indorsement thereon of having levied on the same; whether he had such notice or not, the court left as a question of fact to the jury to be decided by them. The defendant's third proposition the court answered in the negative. The counsel of the defendant below excepted to the answers and charge of the court on his second and third proposition; which have been assigned for error.

KENNEDY, J.: At common law, in England, the writ of fieri facias bound the defendant's goods from its teste, so that a sale of the goods made thereafter by the defendant, though bona fide, might have been avoided by a seizure of the goods under the writ at any time before it became returnable. Anonymous, Cro. Eliz. 174; Cro. Car. 149, 181, 440; 1 Mod. 188; Gilb. on Executions, 13, 14. It was no doubt presumed, when such writ was awarded, that

"The common-law rule prevails in Tennessee. Coffee v. Wray, 8 Yerg. (Tenn.) 464 (1835); Edwards v. Thompson, 85 Tenn. 720, 4 S. W. 913, 4 Am. St. 807 (1887); Cecil v. Carson, 86 Tenn. 139, 5 S. W. 532 (1887), and formerly prevailed in North Carolina; Palmer v. Clarke, 13 N. Car. (2 Dev. L.) 354, 21 Am. Dec. 340 (1830). Cf. Weisenfield v. McLean, 96 N. Car. 248, 2 S. E. 56 (1887).

it would not only be issued, but would be immediately put into the hands of the sheriff, and be by him executed. This, however, was not always the case. On the contrary, the notion of the goods being retrospectively bound from the teste of the writ, as frequently abused by taking out writs of fieri facias one after the other, without ever delivering them to the sheriff, whereby the goods of the dedefendants therein named became bound, which consequently made the sales thereof by the defendants, and all commerce in regard to them, somewhat uncertain. To prevent this, as Chief Baron Gilbert observes, Gilb. on Executions 14, it was enacted, among other things, by the Statute of Frauds, 29 Car. 2, ch. 3, section 16, "that no writ of fieri facias, or other writ of execution, shall bind the property of the goods, against whom such writ of execution shall be sued forth, but from the time that such writ shall be delivered to the sheriff, under sheriff, or coroners to be executed; and for the better manifestation of the said time, the sheriff, under sheriff, and coroners, their deputies and agents, shall, upon the receipt of any such writ (without fee for doing the same), indorse upon the back thereof, the day of the month, or year, whereon he or they received the same." I Mod. 188; 1 Sid. 271.65 But neither before

Repealed by the act of 19 and 20 Vict., ch. 97, § 1, but substantially revived by the Sales of Goods Act of 1893 (56 and 57 Vict., ch. 71, § 26) as follows:

"A writ of fieri facias or other writ of execution against goods shall bind the property in the goods of the execution debtor as from the time when the writ is delivered to the sheriff to be executed; and, for the better manifestation of such time, it shall be the duty of the sheriff, without fee, upon receipt of any such writ to endorse upon the back thereof the hour, day, month and year when he received the same.

"Provided that no such writ shall prejudice the title to such goods acquired by any person in good faith and for valuable consideration, unless such person had at the time when he acquired his title notice that such writ or any other writ by virtue of which the goods of the execution debtor might be seized or attached had been delivered to and remained unexecuted in the hands of the sheriff."

See Hutchinson v. Johnston, 1 T. R. 729 (1787); Samuel v. Duke, 3 M. & W. 622 (1838); Guest v. Cowbridge R. Co., L. R. 6 Eq. 619 (1868); McGivern v. McCausland, 19 U. C. C. P. 460 (1869); Clifford v. Logan, 9 Manitoba 423 (1894). Where several writs are delivered to the sheriff at the same time there is no priority between them. Ashworth v. Earl of Uxbridge, 12 L. J. Q. B. 39 (1842). And as to county courts see Murgatroyd v. Wright, L. Ř. (1907) 2 K. B. 333.

Section 16 of the statute of frauds was at an early date adopted by many of the states, and, while the modern tendency is toward the abolition of an execution lien before levy, the statute is still substantially in force in about one half of the states. 2 Freeman on Executions (3d ed.) 1017; Haggerty & Nobles v. Wilber, 16 Johns. (N. Y.) 287, 8 Am. Dec. 321 (1819); Lambert v. Paulding, 18 Johns. (N. Y.) 311 (1830); Cowden v. Brady, 8 Serg. & R. (Pa.) 505 (1822); Shafner v. Gilmore, 3 Watts & S. (Pa.) 438 (1842); Johnson v. McLane, 7 Blackf. (Ind.) 501, 43 Am. Dec. 102 (1845); James v. Burnet, 20 N. J. L. 635 (1846); Ray v. Birdseye, 5 Denio (N. Y.) 619 (1846); Taylor v. Horsey, 5 Har. (Del.) 131 (1849); Love v. Williams, 4 Fla. 126 (1851); Marshall v. Cunningham, 13 Ill. 20 (1851); Newcombe v. Leavitt, 22 Ala. 631 (1853); Gott v. Williams, 29 Mo. 461 (1860); French v. Allen, 50 Maine 437 (1862); Whitehead v. Woodruff, 11 Bush (Ky.) 209 (1874) ; McCrisaken v. Osweiler, 70 Ind. 131 (1880); Sawyer v. Bray, 102 N. Car. 79, 8 S. E. 885, 11 Am. St. 713 (1889); Hanchett v. Ives, 133 Ill. 332, 24 N. E. 396

DUNCAN V. M'CUMBER

697

nor since the passage of this statute, is the property of the goods altered by the mere delivery of the writ to the sheriff, but continues, notwithstanding, in the defendant, till the execution thereof. The meaning of these words, "that the goods shall be bound from the delivery of the writ to the sheriff," is, that after the writ is so delivered, if the defendant makes an assignment of his goods, unless in market overt, the sheriff may take them in execution. Lathal v. Tomkins, 2 Eq. Ca. Abr. 381, pl. 14; Smallcomb v. Cross, 1 Ld. Raym. 252; per Holt, C. J. This statute, however, only protects goods in the hands of purchasers or strangers, where the goods are sold bona fide; for if the party die after the teste, but before the delivery of the writ to the sheriff, the goods are bound in the hands of his executors or administrators; for this is not a change of property by sale, or for a valuable consideration; Comb. 145; so that in this respect the law is still the same that it was before the statute, which was made for the benefit of strangers, who might have acquired a title to the goods between the teste of the writ of execution, and the time of the delivery thereof to the sheriff, and not for the benefit of the party, or his executors, or administrators. Bac. Abr. tit. Execution, 716, 733; Gilb. on Executions, 15, 16. That the principle of the common law of England in regard to the goods of a defendant, in an execution, being bound thereby from its teste, was introduced into and adopted in Pennsylvania, upon its first settlement as a province, is evidenced very clearly by our act of Assembly, passed for the prevention of frauds and perjuries, in

66

(1890); In re Braden's Estate, 165 Pa. St. 184, 30 Atl. 746 (1895); Gillig v. George C. Treadwell Co., 148 N. Y. 177, 42 N. E. 590 (1896); Hall v. Nash, 58 N. J. Eq. 554, 43 Atl. 683 (1890); Boisseau v. Bass, 100 Va. 207, 40 S. E. 647, 57 L. R. A. 380, 93 Am. St. 956 (1902); Spicks v. Prospect Br. Co., 19 Pa. Super. Ct. 399 (1902); Starbuck v. Gebo, 59 N. Y. Misc. 332, 112 N. Y. S. 312 (1908); N. Y. Code Civ. Pro., §§ 1363, 1405; McAdams v. Mundy, 79 N. J. L. 480, 76 Atl. 1031 (1910); Rock Island Plow Co. v. Reardon, 222 U. S. 354, 56 L. ed. 231 (1911 Ill.); Schneider v. Schmidt, 82 N. J. Eq. 81, 88 Atl. 179 (1913). In some jurisdictions bona fide purchasers without notice of the execution are protected before actual levy. Van Waggoner v. Moses, 26 N. J. L. 570 (1857); Evans v. Walsh, 41 N. J. L. 281, 32 Am. Rep. 201 (1879); Williams v. Shelly, 37 N. Y. 375 (1867); Osborn v. Alexander, 40 Hun (N. Y.) 323 (1886); N. Y. Code Civ. Pro. § 1409; Huling, Brockerhoff & Co. v. Cabell, 9 W. Va. 522, 27 Am. Rep. 562 (1876); Trevillian v. Guerrant, 31 Grat. (Va.) 525 (1879); Weisenfield v. McLean, 96 N. Car. 248, 2 S. E. 56 (1887). In other jurisdictions actual levy is made the test of priority. Princeton Bank v. Crozer, 22 N. J. L. 383, 53 Am. Dec. 254 (1850), as to bank stock; Mercein v. Burton, 17 Tex. 206 (1856), personal property; Johnson v. Gorham, 6 Cal. 195, 65 Am. Dec. 501 (1856); Tullis v. Brawley, 3 Minn. 277 (1859); Knox v. Webster, 18 Wis. 406, 86 Am. Dec. 779 (1864); Reeves v. Sebern, 16 Iowa 234, 85 Am. Dec. 513 (1864); Bagley v. Ward, 37 Cal. 121, 99 Am. Dec. 256 (1869); McMahan v. Hall, 36 Tex. 59 (1871); Sawyers v. Sawyers, 93 N. Car. 321 (1885). In Ohio there is no preference among executions sued out of the same court against the same debtor during the term at which the judgment is rendered or within ten days thereafter. Meier v. First Nat. Bank, 55 Ohio St. 446, 45 N. E. 907 (1896).

"Changed in Penna. as to debtor's dying_after the teste_but_before delivery of the writ by the act of Feb. 24, 1834, P. L. 70, § 33, 2 P. & L. Dig. (2d ed.) 2659; Hoskins v. Huston, 2 Clark (Pa.) 489 (1844). But where the writ is delivered, the sheriff has priority although the debtor die before levy. In re Avery's Estate, I C. P. Rept. (Pa.) 151 (1877).