this visible and actual possession of it? It is at the risk of the officer not to do it; but the law will not raise the imputation of fraud, nor will a jury be bound necessarily to infer fraud from the bare leaving goods in the possession of the debtor, under circumstance, for a time; so far as respects a creditor; or a plaintiff in another execution, under what circumstances will the lapse of time not be conclusive?. These must be left to the court when the question is to them; or to the court and jury where the fact is in issue. What time will conclude? That must be left to the same consideration. A. day, a month, a longer time may be seen in the English books not to conclude. A very short time in other instances has been holden to warrant a conclusion of fraud in fact, or of fraud in law. "If a creditor by fieri facias seises the goods. of the debtor and suffers them to remain long in the debtor's hands; and another creditor obtain a subsequent judgment and execution, it is evidence of fraud in the first creditor, and the goods in the hands of the debtor remain liable," 1 Vez. 245, 6. Take notice, it is the word long that is used. What time shall be construed long cannot be laid down by a general rule. 1 Wilson 44, which is sometimes referred to on. this head, gives a case where the jury found fraud; not from the time but from the circumstance, and manner of the levy. The time was but four days; and the sheriff did not remain, nor his bailiffs in possession of the goods; but the manner of the taking in execution was, by riding round the farm and saying, "I sei se all this corn and cattle." 7 Mod. referred to in Wilson, says nothing of the time; and the plaintiff had "got the sheriff to seise the goods and would not let him proceed further." That was held a fraud, nothing appearing to explain and rebut the imputation; or rather circumstances appearing to support it; as the paying taxes for the farm, and the goods in the mean time, 10 Vin. 561. The case 1 Ray. 251. The time was not a day; but the plaintiff refused to proceed; and the creditor who had another execution in the sheriff's hands took the goods. For it seems, said lord Holt, "that the plaintiff in the first execution had a design

C &

only to keep the execution in his pocket, to protect the defendant's goods by fraud."

The permitting an exercise of ownership for a day, or less time may be such a badge of fraud as will justify a court or jury to infer it. As, "in the case of a bill of sale of liquors, and the permitting the debtor to continue to retail them." Every case of this kind must stand upon its own bottom; for no general rule can apply, unless we say, that from the moment the goods are seised, the officer must be in the actual possession, and proceed with all possible dispatch, to offer them for sale and to make sale of them. The law of England has never been carried to this extent. But unreasonable and unexplained delay, alone, or such circumstances as will evince a design to defeat for a time, or altogether, will warrant the inference of fraud.

I know of no difference in the case of this state (Pennsyl vania) from that of England where actual fraud can be made out; that is an intention to cover property from creditors, or to delay their executions. On what the law shall raise an implication of fraud, there may be a difference; for in the application of a rule of construction, we are bound to look at the difference in the spirit and genius of the system of a different community; and the usage or what is customary goes to explain or rebut the implication. The law of Pennsylvania has been, from the earliest period, favourable to the obtaining credit, and is indulgent to debtors.

The law has had a gradation, a more or less tenderness to the debtor, from a consideration of the circumstances of the people. By the law of 1800, now obsolete in practice, for the appraisement of goods, a postponement of sale for seven days is provided; and in case the goods appraised will not sell for so much as the same are appraised, and valued to be worth by the said appraisers, or any two of them, the creditor shall receive them for his pay.

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Another law of 1700, also obsolete in practice, provides not only that in a levy upon real estate, the chief plantation, or messuage, shall be taken in execution last, but it shall not be exposed before the expiration of one whole year after

judgment is obtained." These provisions in the case of real estate have become obsolete in practice, being considered as superadded, or supplied by the act of 1705, taking away the sale under a fieri facias where real estate is levied on, and providing that a venditioni exponas shall issue only on the return of the fieri facias, where on an inquest taken, the land levied will not extend so as to pay the debt in 7 years. This privilege has been construed by the courts to extend to what are called improvement rights. In case of personal property why not pursue the spirit of the law in the case of real estate?

The early cultivator of the soil in Pennsylvania could not oftentimes take out a grub without credit for an implement of husbandry; nor plough the ground without cattle; nor build a cabin, or live in it without some sort of furniture, and vessels of a culinary nature, or a bed, or a blanket; and execution levied upon these, and rigorously carried into effect might leave him, in a little time, as if he had had no credit. It is on this principle that the insolvent law provides for the unfortunate, the retaining family articles, and implements of the respective occupation not exceeding the value of £5; I mean a respect to the circumstances of the husbandman as well as the early state, of trades, and other occupations. The improvement of the country has a good deal depended on it.

In the case of a levy on personal property, it is the usage that has superseded the appraisement of goods and delivery to the creditor, or of giving some delay in a proceeding to sale. Certain it is, that, it is the usage to let the goods remain and not to change the actual possession instantly in all cases. This with the consent of the plaintiff; or at the discretion of the officer himself taking security. A subsequent fieri facias put into the hands, of the officer and notice to him, or the plaintiff in the first, that if the sale was not made, a levy should be made under the subsequent, might alter the rights of the parties, and lead to a postponement of the prior, to the subsequent. But I do not think that of itself, it ought to be considered as implying fraud.

In the state of New York, 8 Johns. 20, "the agent of the plaintiff delivered an execution to the sheriff, and directed him to levy it on the property of the defendant, but said to the sheriff that he supposed he did not wish to distress the defendant, and that if the property remained in the possession of defendant after the levy, the plaintiff would not hold the sheriff responsible if it was squandered, and that he need not take a receipt for it. The sheriff after levying on the goods of the defendant did nothing further until after the execution had expired, and a second execution was delivered to him when he sold the property on both executions. It was held that as there were no instructions from the plaintiff to delay the execution after the seizure; nor any agreement between the plaintiff and defendant to let the first execution sleep in the sheriff's hands; nor any evidence of such a delay as would afford a legal presumption of fraud, the first execu tion did not lose its preference." This is the marginal note but it is the language of the court in the opinion given," that if a long time had intervened between the one execution and the other, it might have been ground for the jury to have inferred the consent of the plaintiff to the delay, and might have established the legal presumption of fraud. The courts of the United States sitting in Pennsylvania have expressed a disposition to differ, and in one case, 4 Dal. 359, a regret at differing from the decisions of the state courts, in this particular of jurisprudence. But had they any right to differ in laying down a principle, however in the application of one to a particular case? by Sec. 4. of the act to establish the ju dicial courts of the United States, it is provided that "the laws of the several states except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in cases where they apply." Will not this em brace the common law of the state; and where are they to find this, where it departs from the common law of England, but in the decisions of the state courts?

Our decisions are evidence to these courts of our unwrit ten law, and ought to bind, otherwise the abridgment of their

jurisdiction by a constitutional amendment will be called for more loudly than it is.

But it will be said that the giving way to a reasonable time under all circumstance will be a continual source of difficulty, and give rise to litigation in every particular case. It is attended with that difficulty: but this is not the only case known to the law where what is reasonable as to time, is taken into view. This from the necessity of the case, and the impracticability of fixing a rule as to time consistent with a humane administration of the laws. Merry is Stuall,

In the case of Berry v. Smith, in the circuit court of the United States before Judge Washington, according to a manuscript report furnished me, there was a fieri facias, Jan. 1, 1811 on the same day delivered to the sheriff 12 o'clock, with directions not to levy it till further instructions. Same day plaintiff's council called at the house of the defendant to inform him of the issuing the execution, and to request. his taking immediate measures to discharge it. The defendant was not at home. Next day plaintiff's counsel called again between one and two, and found defendant at dinner. He then called him to the door, and informed him of the issuing of the fieri facias: said there was no desire to break him up, or to distress him, if it could be avoided consistently with the plaintiff's safety; that the execution delivered to the sheriff would secure the property; and that the defendant must immediately see the plaintiff's agent, and make some ⚫ arrangement with him to prevent further proceedings under the execution. 3d. Jan. plaintiff's counsel not hearing from the defendant or his agent directed the sheriff to proceed to make his levy; and accordingly the sheriff went to the house of the defendant and levied. But did not then remove the goods; but left them with the defendant according to the orders of the plaintiff, endorsed on the writ "till further orders." This levy made the 3d. But on the 4th, 1 o'clock, fieri facias in favour of another creditor, levy and the same goods seised. The defendant then being in his house, and no sheriff or officers being there, and removed the said goods. The defendant informing the marshal on the