Spicks v. Prospect Brewing Co.

Opinion by

Beaver,

In the S9th section of the Act of June 16,1836, P. L. 755, it is provided: “ No writ of fieri facias or other writ of execution shall bind the property or the goods of the person against whom such writ of execution is sued forth, but from the time such writ shall be delivered to the sheriff, under-sheriff or coroner to be executed.” By the terms of the 40th section of the same act, it is made the duty of the sheriff or other officer, receiving such writ, to “ indorse thereon the day of the month, the year and the hour of the day whereupon he or they received the same.” Since the passage of this act, the law has been uniformly held to require a levy upon a writ of fieri facias, so placed in the sheriff’s hands, to be made before the return day of the writ, in order to mate the lien from the time at which the writ was placed in the sheriff’s hands good; but, when a proper levy is made before the return day of the writ, the levy itself relates to the hour at which the writ was placed in the sheriff’s hands and indorsed thereon. The authorities are very numerous and the practice has, of course, been universal. It is only necessary to refer to one or two late authorities upon the subject. In Braden’s Estate, 165 Pa. 184, it is said: “ As has already been noticed, the writ came into the sheriff’s hands at 11: 30 A. M. of November 27, 1889. By that mere fact, it became a lien upon all the personal property of the debtor until the return day, the 4th day of January, 1890 ; but then, unless an actual levy was made in the interval, the life of the writ expired.” And in Samuel v. Knight et al., 9 Pa. Superior Ct. 352, a case which the appellee relies upon as conclusive of the question of the levy, our Brother Orlady said: “ The writ was a lien in the first instance on all personal property of the defendants in the county but this must be followed up by the levy before the return day and a sale, so as to specifically identify the property sold.” In this latter case the question arose between rival claimants for personal property not depending upon the date of the lien but upon the actual levy of the sheriff and whether or not certain property claimed to have been levied upon by the sheriff was actually included in the levy.

In the present case, however, the question is, whether or not Glenz, through whom the appellant claims, had any ownership in the personal property agreed to be sold to Spicks at the time the lien of the fi. fa. placed in the sheriff’s hands attached- Unless there had been an actual delivery by Glen? to Spicks of the personal property in the hotel prior to the hour at which the writ of fieri facias was placed in the hands of the sheriff and indorsed by him, the appellant had a lien upon the said property by virtue of his writ and, the levy having been made before the return day, related to the hour when the sheriff received the writ, and the appellant would, therefore, have been entitled to a verdict. If the personal property, outside the bar fixtures and liquors, had been actually delivered before and the bar fixtures and liquors were not delivered until after the license had been actually transferred, then the lien would relate only to what remained to be delivered, after the transfer of the license. The question as to delivery was, therefore, divided and the jury would have had a right to pass upon the delivery of the personal property in the manner indicated. It seems, so far as we are able to judge from the evidence, that the bar fixtures and liquors were not delivered until after the writ in the sheriff’s hands become a lien thereon, the levy having been made the same day. As to this, however, we do not intimate any binding decision.

It follows, from -what has been said, however, that the trial judge in the court below erred, both in his charge to the jury and in his answer to the defendant’s points. The various assignments of error raise but a single question which is sufficiently disposed of by what we have said. Judgment reversed and a new venire awarded.