Opinion
MAY TERM, 1802.
The question was discussed by Rawlc and Dallas, for the plaintiff, and by Lewis and Levy, for the defendant; the former relying on the authorities in the English books: 1 Vez. 245, 6. 1 Wils. 44. 7 Mod. 37. 10 Vin. Abr. 561. 568. Peake. N.P. 65. 1 Salk. 320. Carth. 420. 2 Vern. 238. Ld. Raym. 251. Cowp. 712. 1 T. Rep. 729. 1 Esp. 205. And the latter relying on the decisions of the Courts of Pennsylvania, varying the English rule of law, according to the peculiar circumstances of the country. See ante, p. 165. 208. 213.
THIS cause came before the Court, on a case stated for their opinion, in the following terms:
"At the term of September 1798, judgment was obtained in "the Supreme Court of Pennsylvania, at the suit of John Travis " et al. v. Francis and John West, for 1365 l. 3 s. 9 d. debt. and "6 d. costs.
"A fieri facias issued under the said judgment, returnable to " December term 1798, under which certain goods and chattels, "belonging to the defendants, were levied on and taken "in execution, by the sheriff of the county of Philadelphia, on "the 8th day of January 1799.
It was agreed on the argument to state, that the goods were, principally, household furniture.
"The 8th of January 1799, the said John Travis and others, "plaintiffs in the said action, for a full and valuable consideration, "to them paid by the defendants in this action, assigned "the judgment, and all the monies due thereon, to them the said " David H. Conyngham and John M. Nesbitt.
"The goods and chattels so as aforesaid levied upon, were, "with the assent and approbation of the said plaintiffs in the said "judgment before the said assignment, and by the defendants in "this action since the said assignment, and by the sheriff, with "the assent and approbation aforesaid, permitted to be and remain "in the possession of the said Francis and John West until "the levying of the execution hereinafter mentioned.
"At the August sessions 1797, of the ditrict Court of the " United States, for the Pennsylvania district, judgment was obtained, "at the suit of the United States, against the said Francis "and John West, under which judgment a writ of fieri facias "was issued, and on the 13th day of January 1800, was "levied on the same goods and chattels, then being in the possession "of the said Francis and John West, or one of them.
"On or about the 20th day of April 1801, after a time had "been fixed, by the marshal of the United States, for the sale of "the property so levied on by him, at the suit of the United " States, and after advertisements had been put up in the most "public places, of the city of Philadelphia, notifying the time and "place of such sale, the present defendants, for the first time, "gave notice of the prior execution before mentioned.
"Notice was given to the marshal, that if he proceeded on the "sale, an action would be brought against him; and it was. "therefore, agreed, that the goods should be appraised by sworn "appraisers, which was done, and the value thereof, according "to the appraisement amounting to 1557 dollars 75 cents, is "admitted to be in the hands of the defendants in this action.
"The question submitted to the Court is, whether, on the "preceding circumstances, the execution issued by John Travis " et al. can be supported against the execution subsequently issued "by the United States.
"If the Court shall be of opinion in the affirmative, then "judgment to be given for the defendant, otherwise for the "plaintiff.
"A.J. DALLAS, for plaintiff. "MOSES LEVY, for defendant.
" January 30th 1802."
After great deliberation and research, delivered elaborate opinions, scriatim, upon the principles and authorities, connected with the discussion; expressed their regret at differing from the decisions of the state Courts; and, unanimously, gave judgment for the plaintiff.