Williams v. Cheeseborough , 4 Conn. 356 ( 1822 )

Hosmer, Ch. J.

Two general questions have been litigated in this case: First, Whether the attachment, under which the defendant claims title, was prior to the plaintiff’s bill of sale; and secondly, Whether the bill of sale was fraudulent as to creditors.

The attachment was served, and the bill of sale executed, on the same day; and in ascertaining the point of priority, it became necessary to institute a particular enquiry, relative to the precise moment, in which the former was levied, and the latter was delivered. The defendant, very unnecessarily, made a return on the attachment, that he served it at five o’clock; and testimony was admitted to prove, that, in point of fact, the levy of the attachment was prior to the execution of the bill of sale. This enquiry was obviously necessary; and, in this view of the subject, the motion for a new trial would seem to raise no question. But, although the fact is not directly stated, yet from the principle contended for, by the plaintiff, and the argument of the counsel, on both sides, it is, perhaps, fairly to be assumed, that the defendant, in his testimony, was not confined to the precise moment, at which the levy was professed to have been made, but was permitted to show, that the time was prior to the hour specified. To this the plaintiff objects, that the return is conclusive against the defendant; and as a general legal truth, it undoubtedly must be admitted. Gardner v. Hosmer, 6 Mass. Rep. 325. 327. Williams & al. v. Brackett, 8 Mass. Rep. 240. Denton & al. v. Livingston, 9 Johns. Rep. 96. 98.

But, the question arises, whether the return of the levy, at 5 o'clock, is matter of fact, or of opinion. From the nature of the case, it can be nothing more than the latter. I am well aware, that in Clark v. Withers, 6 Mod. Rep. 290. Lord Holt, in commenting on a return of the sheriff, that he had seized goods for the value of a fi. fa., expressed an opinion, that “he must answer for the value returned." But, as the goods remained in the sheriff’s hands pro defectu emptorum, the return presented the only possible test of their value; and from the case referred to, it is, at least, doubtful, whether the opinion is applicable to one differently circumstanced. Be this as it may, the case of Sly v. Finch, Cro. Jac. 514., furnishes a rational and correct rule, founded upon a reason, satisfactory and convincing. The sheriff who returns "quod cepi catalla ad valentiam, 100 l., which cattle die for want of meat, shall be responsible for the specified value; because “it is now impossible they should be reduced to any other certainty.” There is an analogy between the return in the case last cited, and the one on the attachment under discussion. The value returned, from the nature of the case, is opinion merely, but may become the criterion from absolute necessity. In the same manner, it may be said, the precise moment returned, is but opinion, although from the impossibility of any other standard, it may be conclusive on the sheriff. Viewing it in this light, I do not consider it to be a fact, which does not admit of an explanation; but as prima facie indicative of the true time, when it cannot otherwise be ascertained. This is treating the return, not according to the words precisely, but conformable to its nature. It was impossible that the sheriff should know, from his judgment or his watch, that 5 o’clock was the exact period of his levy; and this opinion of his, unnecessarily returned, ought not to be considered as a conclusive averment of fact. In my judgment, testimony admitted to show the moment when the levy took place, ought not to have been repelled, by reason of the return in this case.

The testimony of Jepson, when correctly understood, was altogether, unexceptionable. This evidence was not received, to prove the existence or contents of a writ against the defendant; but the same having been evinced, by the record, he was permitted to testify, that he was directed to serve it, by Ebenezer Prentis. Of the competency of this evidence, there exists no question; and to its relevancy, no objection has been made.

The charge of the Judge, that there may be an attachment of goods, which the officer has not touched, and of which he had not the actual or constructive possession, is unquestionably incorrect; but, in this case, it is merely a speculative question; no facts having called for the expression of the opinion, and no practical effect having resulted from it.

Thus far, I see no ground for a new trial; and the remaining objection, if the motion had possessed the requisite precision, would probably have been equally unavailing. Guided, however, by the motion, I cannot say, that the jury were rightly informed. It became material for the court to instruct them in the principles applicable to a contract, made in fraud of creditors; and it would seem they were told, that “the property must be estimated at its fair value, and the debt must be liquidated, adjusted and cancelled,” or the agreement would be considered fraudulent. The jury undoubtedly understood, that a contract, unaccompanied by these tests, was, absolutely and unexplainably, a fraud on creditors. Had they been informed, that these were badges of fraud, which required a satisfactory explanation, and without this, that they were presumptive of covin, the charge would have been unexceptionable. But it was too much to declare, that they proved a fraud beyond the possibility of refutation.

The other Judges were of the same opinion.

New trial to be granted