(Burchard v. Rees.) he would submit the case to the attorney for the plaintiff. He did not say, while there, that he made any seizure of the property, nor did he leave any person in charge, nor did he go into any other part of the house than the shop. No further proceedings appear to have been had on this execution until the 7th of April, when the goods in the house, including the books and household furniture, were removed by the sheriff; and a few days afterwards they were sold. The proceeds of the goods in the shop were $165,75, and of the other articles sold, $506,60; in all $672,35. Of this sum the sheriff on the 10th of May, paid to the landlord of Porter $293,34, being the amount of rent due to him to the 18th of April, and as it appeared, the amount of one quarter's rent, deducting two days; the quarter not expiring until the 21st of April. The attorney of the plaintiff, in the execution, (Clark) signed an agreement authorising the payment to the landlord, so far as the plaintiff was concerned. The landlord in his receipt engaged to exonerate the sheriff from liability by reason of the payment to him. The balance of the money in the sheriff's hands was paid to the plaintiff in the execution. The writ of fieri facias, under which the sale took place, was not produced at the trial, but it was agreed that the only endorsement on it was the following in pencil marks made by the sheriff's officer, Heston, "March 16th, 1832. Levied on all the goods and chattels of the defendant at his bookstore, consisting of an assortment of books, fixtures, &c." Judge Kennedy charged the jury in substance as follows: "The fi. fa. being in the hands of the sheriff and in full force at the time Porter assigned the goods to Potter, was a lien upon them, and the sheriff had, therefore, clearly a right to seize and take them in the hands of Potter, the assignee, at any time thereafter before the expiration of the return day of the writ. But, if he omitted or neglected to make a seizure until after that, he could not do it then. The lien, created by issuing and placing the fi. fa. in his hands, expired with its return, as well as all authority thereby given to him to take the goods. If, however, he made a seizure upon any part of the goods before the return of the fi. fa. he might well complete the execution of it, thus begun, by making a sale of the goods so seized after the return thereof. It is alleged and argued by the defendant's counsel, that there was a seizure of part of the goods in the name of the whole, before the return of the writ. If the sheriff or his deputy had made such seizure, when all the goods were within his power, it would have been good, if followed up with reasonable diligence. But what evidence have you of such a seizure? The (Burchard v. Rees.) writ of fi. fa. itself is mislaid or lost, and has not been produced, but evidence has been given, that after the return of it, an indorsement in pencil mark was seen on it, in the following words, to wit, " March 16th, 1832, levied on all the goods and chattels of the defendant at his book store, consisting of an assortment of books, fixtures, &c. Sheldon Potter, assignee." When this indorsement was made, does not appear, whether on the 16th of March, 1832, or not. It appears from the deposition of Wendell, that the deputy sheriff was at the store on that day or the day preceding, and saw that portion of the goods which were in the store, but it does not appear that he was in any other part of the house, or saw any of the other goods at any time. If, however, he made the indorsement of seizure at the time he was at the store, and pursued it afterwards with reasonable diligence, it would be a good seizure of the goods in the store, but not of the other goods. It does not purport to be a seizure of any other goods than those in the book store, and must be confined to that. But if a seizure were made according to the purport of this indorsement, on the 16th of March, 1832, is it not reasonable to suppose, that the sheriff or his deputy would have attended to it within a short time afterwards? He was informed that the goods had been assigned for the benefit of the creditors of Porter, and of course had reason to conclude that the assignee would dispose of them, if not taken from him, as soon as he could. The assignee accordingly did advertise the goods for sale on the 31st of March, and was then about to sell them, when Mr. Davis, the landlord of the assignor, distrained upon them for rent. During this time no notice, that we hear of, was given to the assignee, by the sheriff or his deputy, of a levy upon the goods or any portion of them. Nor does it appear that any allegation to this effect was made by the sheriff or his deputy until about the 7th of April; when it was claimed that the goods were levied on. This delay and silence on the part of the sheriff, under the circumstances of this case, is, perhaps, sufficient to excite a suspicion, that no part of the goods were levied on until after the return of the writ of fi. fa. However, of this as a fact, I leave you to judge from the whole of the evidence. But beyond the goods in the store there is not even the colour of evidence to show, that there was a levy. In regard to damages, the plaintiff only claims the amount for which the goods sold at sheriff's sale with interest thereon. So far as he is entitled to recover, there is nothing unreasonable in this; less ought not to be given. If, however, you should be opinion, that the goods in the store were levied on, their price ought to be deducted, and your verdict be given for the price of the residue of the goods, with interest thereon from the time of sale to the present time. The defendant cannot have an allowance made for the moneys paid to Mr. Davis, the landlord; because as against the goods in the hands of Mr. Potter, the assignee, he had no claim whatever for rent. There was no rent in arrear and due to him. It was only against (Burchard v. Rees.) the sheriff, in case he had made a seizure of the goods, while the fi. fa. was in force, and sold them afterwards, that he could have any claim for rent. This would also seem to have been the understanding of the parties; for the receipt of the landlord to the sheriff for the money, contains an engagement to refund it in case of a recovery against the sheriff." Mr. Brashears, in support of the rule to show cause why a new trial should not be granted, contended, that the evidence showed that a levy was made on the 16th of March, and enough done according to the practice, to establish the lien of the sheriff; and that if the sheriff's officer was prevented from proceeding further by the misrepresentation of the plaintiff's agent, the plaintiff could not take advantage of the defect. If the levy was good, the payment to the landlord was right, since by the decisions the rent is to be apportioned to the time of sale. Mr. W. M. Meredith, contra. The only question in this case was one of fact, viz. whether there was an actual levy, which was decided by the jury in the negative. The evidence of Wendell was conclusive upon this point. The indorsement on the writ by the sheriff's officer was not made at the time he went to the store, and there was no reason to believe, it was made before the 7th of April. Then there was no levy until after the return day, which certainly is too late. The defendant was not entitled to any deduction for the rent paid to the landlord, since the quarter's rent not being due until the 21st of April, he had no lien upon the goods at the time of the supposed levy. PER CURIAM.-Whether there was a levy at all, was a question properly left to the jury: and the fact, being found for the plaintiff, dispenses with the necessity of determining whether a levy of the effects in the room would have included effects in other parts of the building. If the direction was wrong in respect to that, it was without actual prejudice, and is not an assignable error. The finding disposes also of the lien of the execution. It is plain that the defendant was not entitled to an allowance for the payment to the landlord. But for the distress, followed immediately by the sheriff's seizure before rent had become due, the assignee might have removed the goods without let or hindrance from any one-the object not being to elude the growing rent; and that they were detained on the premises till rent was incurred by an unlawful distress, and the sheriff's seizure after the return day of the writ, could not justify the sheriff in paying, or the landlord in receiving. This point also was properly disposed of. Rule discharged and judgment on the verdict. [PHILADELPHIA, APRIL 5th, 1836.] MASON and Another against CONNELL and Others. 1. The liability of a dormant partner to creditors may be avoided by proof of fraud in the formation of the partnership, if no part of the funds have been received by such dormant partner. 2. It seems that a partnership formed by articles for a definite period, may be dissolved by either partner before the termination of the period. 3. One partner cannot, without the consent of the other, introduce a stranger into the firm, nor can he, without such consent, make the other partner a member of another firm; but such consent may be implied from the acquiescence and acts of the parties; and if such other partner is made acquainted with the facts, he ought to dissent from the arrangement; otherwise he will be bound by it. THIS was an action of assumpsit brought by Matthew S. Mason and Ignatius M'Donough against John Connell, Francis Worley and Thomas Welsh, to recover the price of certain goods sold and delivered by the plaintiff to John Connell. A return of N. E. 1. was made as to Connell; and the action proceeding against the other defendants was tried before Mr. Justice Rogers at a Court of Nisi Prius, held at Philadelphia, on the 25th of November, 1831. It appeared in evidence on the trial, that Francis Worley and Thomas Welsh had for some time previous to the 1st of September, 1828, been engaged in business under the firm of Worley and Welsh ; the former residing in the city of Philadelphia, and the latter in the city of Baltimore, and that John Connell, the other defendant, was engaged in similar business in the city of Pittsburgh. On the 1st of September, 1828, the following agreement was en tered into: "Articles of agreement and co-partnership entered into and agreed upon by John Connell, residing in the city of Pittsburgh, state of Pennsylvania, on the one part, and Francis Worley, merchant, residing in the city of Philadelphia, and Thornas Welsh, merchant, residing in the city of Baltimore, on the other part, witnesseth, that the above named John Connell, of the city of Pittsburgh, and the above named firm of Worley & Welsh of Philadelphia, have this day formed and entered into a copartnership to carry on, and conduct the mercantile business under the name of John Connell in the city of Pittsburgh and state of Pennsylvania, on the following terms. The said John Connell does agree and hereby bind himself, his heirs, executors, administrators and assigns, to place in the said concern as above named, the amount and full value of $12379,44 of (Mason v. Connell.) goods or merchandise agreeable to the annexed statement, the same to be taken and held by the above named parties at the specific value of $9,000 as a capital stock in trade; and the above named firm of Worley & Welsh agree and bind themselves, their heirs, executors, and administrators to place in the above named copartnership or let remain in the hands of the concern in Pittsburgh, carried on under the name of John Connell, the amount of $2000 out of the bill of goods or merchandise bought in the name of John Connell from the firm of Worley & Welsh, under date of the 26th August, 1828, and they further agree and bind themselves to place in the above concern, or let remain out of the goods bought subsequently to the date hereof, for the concern of John Connell, the further sum of $3000; the said $3000, it is however agreed upon, is not to be placed in said concern of John Connell before the first day of July, 1829, unless it can be made convenient to the firm of Worley & Welsh; and it is further agreed upon by the parties hereto named, that on and after the 1st of March, 1829, the business of the concern shall allow John Connell an interest of 6 per cent. per annum on $7000, and after the said Worley & Welsh shall have placed the additional sum of $3000 in the business, which will then make a capital stock of $5000 placed in the concern by them, then the concern shall allow to John Connell an interest of 6 per cent. per annum on $4000. It is further understood and agreed upon by the parties herein named, that after paying the expenses necessary or unavoidably accruing in the business, then there shall be an equal division of the profits that may or shall be made in the business, that is to say, one half to John Connell, and one half to Worley and Welsh: and it is further agreed by the said parties herein named, that the co-partnership shall continue to exist for the term of 3 years from the date hereof, unless sooner dissolved by mutual consent of the partners. In witness we have hereto subscribed our names, the 1st Sept. 1828. JOHN CONNELL, The name of the firm subscribed to this agreement, was in the handwriting of Worley. The statement referred to in the agreement, and annexed to it was as follows: "Memorandum of John Connell's situation in business, according to his representation of it, on the 1st of April, 1828, including sales made out of his stock to the 1st of April, 1828. Amount of stock belonging to Anderson & Co. taken by John Connell, April 1st, 1828. 9044 00 Amount of goods in Philadelphia bought by John 9959 04 Connell, in Philadelphia, in May 1828. |