which he accordingly did, beginning with the 9th of April, 1830,
and continued until he reached an amount of upwards of eight
thousand dollars, of which a small portion only was paid for,
leaving upwards of seven thousand dollars still unpaid for. A
part of this marble was handed over from time to time to Peter
Fritz, and on the 19th of January, 1832, he assigned the whole
of what he had on hand, ^together with his real estate, r^oyo-i
to Peter Fritz, who was then his debtor. An appraise- L
ment was made according to law, of the stock thus assigned,
and it was valued at two thousand nine hundred and forty-eight
dollars and twenty-eight cents. It was exposed to sale by the
assignee, and so improperly and unfairly conducted that persons
desirous of purchasing had no opportunity to do so ; and Peter
Fritz purchased in the whole, (excepting thirty-four dollars and
fifty cents' worth,) for one thousand seven hundred and sixty-
four dollars and sixty-four cents, it being put up and sold in
lots. No account has ever been settled by Peter Fritz as
assignee. Frederick Fritz applied for the benefit of, and was
discharged under, the insolvent law, in the spring of 1832. At
the time of his hearing, the plaintiff, as a witness, swore that
Frederick had not the capacity for carrying on business ; and
very soon after his discharge, he reinstated him in the same
yard, with the same marble for sale, and the word "agent,"
was added to the name of Frederick Fritz, on the sign which
had previously been there. The whole course of proceedings on
the part of the plaintiff was conducted and carried on with a
419
373 SUPREME COURT [Philadelphia,
[Fritz v. Hocker.]
view to circumvent the defendant, and without any serious
design on his part, in good faith to form a partnership, but with
the appearance and promise of it, to procure a title to one-half
of the marble quarry. And by the dissolution of the partner-
ship, and non-payment of the purchase-money, the consideration
has failed.
" By the articles of co-partnership, the defendant was exclu-
sively to take charge of, aud attend to the quarry, quarrying
and selling of marble, and delivering of the same. An action
of partition has been brought, and is recently discontinued by
the plaintiff. An action of detinue for the deed was brought by
the plaintiff, and is also discontinued. An action of account
render, was also brought by the plaintiff, and is now depending
before arbitrators."
The whole of the evidence thus offered on behalf of the de-
fendant was rejected by the court, and the jury found a verdict
for the plaintiff, for " one undivided half part of twenty acres
and forty perches, being the premises in the declaration men-
tioned, with six cents damages and six cents costs."
Motions in arrest of judgment, and for a new trial, were then
made on the part of the defendant, for which the following
reasons were filed :
Reasons in arrest of judgment: 1. That the verdict is for
an undivided half part of twenty acres and forty perches ;
whereas, the declaration is for twenty acres and forty perches
of land.
2. That the judgment is for the plaintiff, whereas, it should
have been for the defendant.
Reasons for a new trial: 1. That the court rejected evidence
f*^741 w hi cn was offered by the *defendant, as set forth in the
" paper hereto annexed, and rejected every part thereof.
2. That the court decided that the facts, circumstances, and
allegations set forth in the said paper were insufficient, if fully
proved, to prevent the plaintiff from obtaining a verdict.
3. That the court decided that the facts proved by the plain-
tiff were sufficient to entitle him to a verdict, and that his right
would not be interfered with by any proof of the circumstances,
or any of them, which are set forth in the paper above referred to.
4. That the defendant was entitled to give evidence of fraud
and circumvention, and failure of consideration, as set forth in
the said paper. But the court refused to permit such evidence
to be given.
5. That no actual ouster was proved by the plaintiff, so as to
entitle him, as a tenant in common, to maintain an ejectment
against his co-tenant in common.
420
Feb. 17 1834.] OF PENNSYLVANIA. 374
[Fritz v. Hocker.]
6. That the verdict is for an undivided half part, while the
declaration is for twenty acres and forty perches of land.
7. That the verdict is for the plaintiff, while it should have
been for the defendant.
These motions having been overruled, the defendant appealed
to the court in bank, where the same reasons which had been
relied upon in the Circuit Court, on the motions in arrest of
judgment and for a new trial, were filed in support of the
appeal.
After argument by P. A. Browne, and J. R. Jngersoll, for the
appellant, Kiitera, for the appellee, was relieved by the court,
whose opinion was delivered by
GlBSON, C. J. As there was ample evidence of delivery as
well as of an ouster of the grantee, and as it has already been
ruled in a case like the present, that the plaintiff may recover
according to his title, it but remains to be determined whether
the proposed evidence of fraud was sufficient to set aside the
conveyance in equity. There was no allegation of fraud ap-
pearing from the intrinsic nature of the contract ;' for the con-
sideration which is usually the test of that, appears to be a
reasonable one: nor from the condition of the parties; for they
stood in the relation of brothers of mature age, free from the
pressure of necessities, and labouring under no apparent infirmity ;
nor from the nature or circumstances of the transaction, as being
a fraud upon others; for none but the immediate parties were
concerned in it, either in interest or feeling. If there was fraud
at ail, then it must have arisen, according to the classification of
Lord Hardwicke, in Chesterfield v. Jansen, from circumstances
of actual and positive imposition. In what do these consist ?
They consist, said the same great authority, in the suggestion
of a falsehood, or the suppression of a truth. What, then, is
the suggestion or suppression contained in the evidence of cir-
cumstances rejected? The parties were partners when the de-
fendant purchased on separate account the marble quarry, which
is the ,<ubject of the action, the purchase-money being raised by
a loan on the credit of both. *The partnership being p^g-i
dissolved, the plaintiff being pressed for payment of a I
heavy balance to the defendant, gave notice of measures medi-
tated by him to release himself from responsibility as the surety
of the defendant. So far, there is no pretence of fraud. The
dispute was merged in a new partnership, by which the defend-
ant became jointly interested with the plaintiff in his business as
a marble mason, and the plaintiff became, fora consideration to
be paid in money, a joint proprietor of the quarry, which was
421
375 SUPREME COURT [Philadelphia,
[Fritz v. Hocker.]
conveyed on terms by which the defendant was to superintend
the working of it, while the plaintiff was to superintend the
sales at the yard in Philadelphia. On being pressed for his
share of the purchase-money, the plaintiff denied the partner-
ship, his own indebtedness, kept exclusive possession of the
yard, and set the defendant at defiance. This is the whole
case; for the subsequent credit surreptitiously obtained by the
plaintiff, has no connection with the conveyance. The gist of
the supposed fraud, then, is in the concealment of an imputed
plan of acquiring the property, and refusing to perform the
agreement which was the consideration of it. But this plan, if
it really existed, and it can be inferred only from subsequent
acts was an impracticable one, for the law would compel him
to perform his agreement, whatever his determination in respect
to it might haVe been. No one would contend that, to deny
the execution of a bond or mortgage given for purchase-money,
would entitle the vendor to a recision of the conveyance; yet
what, in principle, is the present case, beside? Chesterman v.
Gardner, 5 Johns. Ch. R. 33, was a much stronger case, even
than that ; for there subsequent acts of the defendants, in re-
spect of which the law had provided neither guard nor remedy,
were found to have put the plaintiff in a condition of jeopardy,
which he certainly had not anticipated, which nevertheless may
have been meditated by the defendants at the execution of the
deed. The case was this. The owner of a mortgage, who, to-
gether with the owner of the equity of redemption, had leased
the premises for a term of years with covenant for quiet enjoy-
ment, assigned the mortgage to one who procured a decree of
foreclosure and sale, the lessee becoming the purchaser, and
depriving himself of recourse to the covenant by merging his
term in the fee. His bill to compel the lessors to account with
him for the loss sustained by being deprived of the benefit of
his lease, was dismissed, because, as the chancellor said, the fraud
which is to afford relief, means fraud at the execution of the
deed ; and that the cases on the subject do not refer to subse-
quent and distinct transactions, which do not affect or impair
the good faith which was felt and intended when the conveyance
was executed. It is true the lessee had voluntarily relinquished
the security of his covenant ; but even that circumstance reduces
the case but to the principle of the one at bar ; arid it may safely
be asserted, that the meditation of a fraud which is incapable
of consummation, is no ground for a recision of the contract.
Judgment affirmed.
Cited by Counsel, 7 W. 233 ; 3 W. & S. 263.
422
Feb. 17, 1834.] OF PENNSYLVAMA. 376
^PHILADELPHIA, FEBRUARY 17, 1834.] [*376]
Hickman against Caldwell.
Black against The Same.
APPEAL.
If & fieri facias be issued, and returned "Levied as per inventory," &c., with
an inventory annexed thereto, and immediately after its return an alias fieri
facias be issued on the same judgment, and put into the sheriff's hands, with
instructions from the plaintiff's attorney to stay proceedings for the present,
the object being merely to secure the debt due to his client, it must be post-
poned to a fieri facias subsequently issued by another creditor, which has been
duly acted upon.
THIS was an appeal from the decision of the Court of Com-
mon Pleas of Delaware county, in the distribution of the pro-
ceeds of real estate sold by the sheriff under execution.
From the record it appeared, that on the thirtieth of Decem-
ber, 1830, a judgment was confessed in the Court of Common
Pleas of Delaware county, by John Caldwell, in favour of Ann
Black, on a bond of the same date, conditioned for the payment
of six hundred dollars on the same day. On the following day
a fieri facias issued on this judgment, which was placed in the
hands of the sheriff, with instructions, which, with the manner
of making the levy, and taking the inventory, will appear here-
after. This fieri facias was returned to January Term, 1831,
(on the 17th of January) " levied as per inventory," <fec., and
an inventory was attached to the writ. On the twenty-first of
January, 1831, Ann Black issued an alias fieri facias on her
judgment, and placed it in the hands of the sheriff, with instruc-
tions, which will also appear hereafter.
On the fifth of February, 1831, Francis Hickman obtained
judgment against John Caldwell, issued a. fieri facias, on which
the real debt indorsed was three hundred and thirty-four dol-
lars and fifty cents, with interest from that date, placed it in the
hands of the sheriff, and directed a close levy to be made, and
the property sold. The sheriff, conceiving from what had taken
place, that the proceedings under Ann Black's execution had
been stayed in such a manner as to give Hickman's the prefer-
ence, proceeded to levy, advertise, and sell, on the execution of
the latter, on which he returned, "levied the debt and damages
within specified, &c., and that he has the moneys," &c.
To the alias fieri facias of Ann Black, he returned, "levied
the sura of five hundred and fifty-nine dollars and twelve cents,
423
376 SUPREME COURT [Philadelphia,
[Hickman v. Caldwell. Black v. The Same.]
part of which is subject to the payment of Hickraan's execution,
and leaving only two- hundred and one dollars and eighty-seven
cents, to be applied to the payment of costs, and part of the debt
on Mrs. Black's execution."
After some delay the money was paid into court for distribu-
tion by the sureties of the sheriff, he having become insolvent.
r*o7y-i *On the twenty-ninth of February, 1832, a rule was
-" obtained on behalf of Hickman to show cause why he
should not take out of court the amount for which his execu-
tion issued; and on the twenty-eighth of May, 1832, a similar
rule was obtained on behalf of Mrs. Black, the object of which
was to enable her to take out, under her execution, all the
money which had been paid in.
It was agreed by the counsel, that the notes of the evidence
taken in the Court of Common Pleas by Judge Darlington,
should be received on the appeal. The material parts of the
evidence only need be stated.
John Broomshall, esquire, the late sheriff, testified, that the
first inventory he received, was obtained through Caldwell, who
came down to his house, and gave him a correct account of the
property. He told the sheriff it was not worth while to go on
to the property, he was going to break, was insolvent, and would
have to be sold out. William Martin, esquire, (the attorney of
Mrs. Black,) took the account of the property, and gave him the
schedule. The sheriff had his instructions from Caldwell, who
observed, that he was insolvent. Mr. Martin told the sheriff to
hold on to that writ ; it was not their disposition to sell Cald-
well out, it was only to make Mrs. Black safe. Some time sub-
sequent to this, another fieri facias was put into the sheriff's
hands at the suit of Hickman, with orders to go on and sell ;
to make a close levy ; to pay no attention to the former levy ; to
make a new and a strict one. Under the last-mentioned writ,
he sold and made a return. The sheriff stated that he should
not have sold on that execution, if Mr. Martin had not directed
him to stay the proceedings on Ann Black's execution. An
alias fieri facias on Mrs. Black's judgment was put into his
hands in court by Mr, Martin, who requested him not to return
the first execution until he had delivered him that. He said
he hud no disposition to sell Caldwell out ; he only wanted to
hang on to the property to make themselves secure. The goods
were left with the defendant, before Hickman's execution came
out. The sheriff was not on the premises at all, until Hick-
man's execution was sued out ; his deputy was there when the
levy was made under that execution. There was no previous
levy.
On his cross-examination the sheriff stated, that he did not
424
Feb. 17, 1834.] OF PENNSYLVANIA. 377
[Hickman v. Caldwell. Black v. The Same.]
recollect whether Caldwell was present when the inventory was
attached to the fieri facias. He recollected Caldwell's telling
him that he was going to break, and had employed Mr. Martin,
as his attorney. Mr. Martin was not then present.
The witness further stated, that Caldwell brought him the
list, but being aware that there might be a difficulty, he sent his
deputy out to make a close levy, which he did, and it was an-
nexed to the writ, but it was not the one then attached to it.
He made the return on the faith of his deputy. The alias fieri
facias he stated, was issued immediately on the return of the
original fieri facias. When Hickman's execution came into his
hands he did not inform the person who *brought it r*o 7 o-i
that he had Mrs. Black's, lie went to Mr. Martin, L
and did not inform him that an execution had been put into his
hands at the suit of Hickmau. He went to Mr. Martin to know
what he was to do with the alias fieri facias, and whether he
was to go on and sell or not. Mr. Martin told him he wished
proceedings stayed. The witness added, that he knew the pro-
ceedings were ordered to be stayed. He had the alias fieri
fac'as in his hands at the time. After the advertisements were
sf* ip, Mr. Martin went to the sheriff and asked him, what
writ he was selling under. He answered, Hickman's. Mr.
Martin then said, you must go on and sell under Mrs. Black's.
The sheriff answered, that he would make return of the balance
of the money to her.
Jonathan Vernon, who was also affirmed on the part of Hick-
man, stated, that the sheriff and Mr. Martin were talking in
Irvin's bar-room, and the sheriff called on the witness to take
Motice of what he said. He then asked Mr. Martin whether he
should go on with the sale of John Caldwell's property or not ?
Martin said no "No; stay proceedings."
Samuel R. Lampleugh testified, that he was the deputy sheriff,
and went to levy on the property at the suit of Hickman. He
never went to make a levy on it at the suit of Mrs. Black. He
nevet went on that business more than once
It was proved or admitted that John Caldwell and Mrs.
Black were half brother and sister, and lived together.
On the part of Mrs. Black, William Martin, esquire, was af-
firmed, and stated that he was the attorney of Mrs. Black,
in relation to the alias fieri facias : That in the conversation
which took place at Irvin's the sheriff called upon him to know
whether he should go on immediately with the execution at the
suit of Ann Black against John Caldwell, and whether he should
immediately advertise and sell : That he told him, " it was not
the wish of the plaintiff to sell the property of the defendant
at that present time : That it was the dead of winter, and prop-
425
378 SUPREME COURT [Philadelphia,
[Hickman v. Caldwell. Black v. The Same.]
erty would sell better at another period : That he would give
him instructions when he wanted him to sell : That Mrs. Black
did not want to press her brother if she was secure in her debt :"
That the sheriff then called Mr. Vernon, and mentioned to him,
that he wanted him to take notice, that he (the witness) had
ordered the proceedings stayed : That he remarked to the sheriff
at that time, or immediately after, that Mrs. Black wanted the
proceedings stayed for the present moment or time, so far as re-
garded advertising, and proceeding to sale: That he called, as
he thought, the next day, on the sheriff, who was sick in his
chamber, and told him he had learned that another execution had
been issued and he supposed he would go on with the sale whether
they were disposed or not : That in Irvin's bar-room the sheriff
did not inform him that another execution had been issued, nor
did he know it until the next day : That when the first fieri
facias was issued, the sheriff and Caldwell came to him in the
prothouotary's office, and at the request of the sheriff he made
r*o7Q-i the inventory attached to the writ, Caldwell mention-
' J ing the articles : That he also drew up the return to the
fieri facias, at the request of the sheriff, as he had done in many
other instances : That the return was made on the last day on
which the writ was returnable : That according to his recollec-
tion, the alias fieri facias did not issue until a day or two after
the return day of the first writ, and he did not recollect
having given the alias fieri facias to the sheriff himself, nor
having given him any particular instructions with regard to it
until the conversation at Irviu's, though he might have done so:
That he mentioned to the sheriff on several occasions, that it
was not the disposition of Mrs. Black to distress her brother, if*
she could avoid it, but she wanted to and would save herself if
possible : That he believed the general direction was given on
the first execution that he would give the sheriff notice when
they wished a sale: That he thought Mrs. Black and Mr. Cald-
v/ell both applied to him to take out the execution, but was not
positive with regard to that, nor whether they were both present
when the judgment was signed: That Caldwell mentioned that
he owed his sister so much money, six hundred dollars, and he
wished the witness to secure it for her: That he (the witness)
said, if Caldwell would confess a judgment, he could issue an
execution and sell the property ; no other plan, he thought, was
proposed ; nothing was said, he believed, about a bill of sale, but
of this he was not certain ; the sister said she did not wish to
sell her brother's property immediately, if she could be secured
without it : That he thought there was no agreement, but the
matter was left altogether to his discretion to press the sale or
et the execution stand, as he saw prouer : That he prepared the
426
Feb. 17,1834.] OF PENNSYLVANIA. 379
[Hickman v. Caldwell. Black v. The Same.]
bond on which the judgment was entered, and his impression
was, that Mrs. Black was present : That he supposed the con-
versation with the sheriff was on the fifth of February, 1831,
the day Hick man's execution was issued, and that the sheriff had
just received it.
Upon the evidence above stated, the Court of Common Pleas,
after argument, decided that Ann Black was entitled to all the
money in court, and Francis Hickman appealed from the de-
cision.
The exceptions filed in the court, were
1. That the facts of the case prove, that the executions of
Ann Black were intended merely as a cover to the property of
the defendant.
2. That the facts and returns show, that the executiou of
Francis Hickman was entitled to a legal preference, and it was
postponed by the Court of Common Pleas to the executiou of
Ann Black.
Dick and Dittingham, for the appellant, cited Starkie on Ev.
part 4, page 1350; Hob. 206; Shewell v. Fell, 3 Yeates, 17;
s. c. 4 Yeates, 47 ; Smallcomb v. Buckingham, 1 Sulk 320 ;
s. c. 1 Ld. Raym. 251. Act of 16th of April, 1827, Purd Dig.
476; Howell t>. Alkyn, 2 Rawle, 286; Mechanics' Bank v.
Fisher, 1 Rawle, 341 ; Cowden v. Brady, 8 Serg. & Rawle, 505-
510; 6 Ba. Ab. 179; Siiyder v. Kuukleman, 3 Peim. Rep. 487 ;
Barnes r. Billington, 1 Wash. C C. Reps. 29; *Berry r*ooni
v. Smith, 3 Wash. C. C. Reps. 60; 2 Kent's Com. 524; L
Boiid v. Gardener, 4 Biun. 269.
S. Edwards and Tilghman, for the appellee, relied principal!/
upon Howell v. Alkyu, 2 Rawle, 282.
The opinion of the court was delivered by
GIBSOX, C. J. This case is said to have been ruled below on
the authority of Howell v. Alkyn, 2 Rawle, 282 ; and ruling it
by the principles assumed by the judge to whom was assigned,
in that case, the duty of pronouncing the judgment of the court,
instead of ruling it by the point directly decided, the conclusion
drawn by the President of the Common Pleas, could not well
have been avoided. I feel bound to say, however, that tliose
were not the principles of the cause as settled in consultation.
the circumstances intended to have been made the test, being
the same that had been applied in Eberle v. Mayer, 1 Rawle,
366, and that has since been applied in the Commonwealth v.
Stremback, 3 Rawle, 341, to wit, the presence or the absence
of a direction to stay proceedings on the levy. There was no
427
380 SUPREME COURT [Philadelphia,
[Hickman v. Caldwell. Black v. The Same.]
such direction in Howell v. Alkyn ; and the mere sufferance of
procrastination by the officer, was held not to be fraudulent per
se. Had the exact bearing and extent of the principles laid
down in the opinion delivered, been perceived at the time, the
disclaimer would have been made then, which I feel it a duty to
the profession and the court to make now. I am happy to have
the authority of my brother Rogers, the other survivor of the
judges who then composed the court, for the entire accuracy of
this statement, and for saying that the principles laid do\vn by
my brother Huston were peculiar to him. Then, without inti-
mating an opinion on the point made here, in relation to the
supposed effect of the return on the rights of the parties, we
will determine this case, as we have determined all others of a
similar nature, by an application of the test just mentioned.
The principle of this test is, that to levy with directions to
proceed no further, can be referred to no object but the crea-
tion of a lieu which the law does not tolerate. What was the
object here? Ann Black, who claims priority, put her fiev-i
facias into the hands of the sheriff, with instructions that will
presently be stated, on the 31st of December, 1831, which was
returned at the January Term succeeding, " levied as per in-