may be necessary for the accommodation of the family, in a public inn, is intended for the same purpose. And how far and to what extent household furniture may be permitted to remain with the debtor, without the legal consequences which attend property of a different description, has not yet been decided. The principle has heretofore been laid down generally, that the act of suffering household goods to remain in the hands of the defendant after they are levied on, furnished no presumption of fraud here, as it did in England. Whether this extends to all a debtor's furniture, however valuable, without limitation, may perhaps some day be worthy of serious investigation. The exemption of any species of property is to be regretted, as every day's experience shows that it tends to produce collusion and fraud. That there should be some limit, I think apparent, and what it may be will be for the court to determine when the question arises.

I will now consider the effect of the order to stay proceedings, the levy to remain. As between Clements and the execution creditor the lien remained, for that was the contract as appears from the testimony and from the order itself. But if the intention of the parties was fraudulent, or the object of the arrangement was a security for the debt, the lien of the execution was gone as respects third persons, whether purchasers or execution creditors. The object of an execution is the satisfaction of the debt, and not security for it. The law will not endure the levying an execution on goods only as a security: 1 Wils. 44; Bradley v. Wyndham; 8 Serg. & R. 510.1 Suffering goods which are levied on to remain in the possession of the debtor under an arrangement such as the present, is fraudulent per se, as against the policy of the law. And from this it results that it is of no consequence whether the execution is returned or not, or that third persons had notice of the agreement, that the levy should remain. The rule is intended to prevent fraud, and this can be most effectually done by treating the property in the same manner as if no levy had in fact been made. It is sufficient for a purchaser or execution creditor to know that the execution is not intended to obtain satisfaction, but that the purpose of the levy is a mere security for the debt. The court will not inquire whether in fact there was fraud or not. It is an inference of law, which can not be rebutted, which constitutes the levy so far as respects third persons, fraudulent per se. If this should be permitted I can not per

1. Cowden v. Brady, 8 Serg. & R. 505.

ceive how it would differ from a mortgage of personal property, the mortgagor retaining the possession. And that a mortgage of goods with possession retained by the mortgagor is fraudulent in law, has been decided in England and in this country. To give a creditor priority by such a mortgage, when the mortgagor is allowed to appear and act as owner, is enabling him, as is said by Lord Mansfield, in Worseley v. De Mattos, 1 Burr. 467, and by the present chief justice, in Clow v. Woods, 5 Serg. & R. 275 [9 Am. Dec. 346], to impose on mankind by false appearances. A question, similar in every essential feature to this, came before the court in Eberle v. Mayer, 1 Rawle, 366, and it was there held that an order by an execution creditor to the sheriff, to stay all further proceedings on his execution at his risk until further directions, is a waiver of his priority in favor of a second execution received by the sheriff during the continuance of the stay. It is true, as is there said, that merely leaving the property in the possession of the defendant in the execution, though with the plaintiff's consent, is not per se fraudulent, either as to subsequent creditors or purchasers, but where the plaintiff directs the sheriff to delay the execution or sale the law is otherwise: Berry v. Smith, 3 Wash. C. C. 60, is, if possible, still nearer the point. The change of possession, as was there said, gives notice to all the world of the real situation of the debtor in relation to the property so seised, and prevents them from being deceived by the appearance of wealth to which the debtor has no just pretensions. If the execution is delivered to the officer with orders not to levy it at all, or until further orders, the purpose of the delivery is not answered and all the legal consequences of the measure, in respect to creditors and purchasers who would otherwise be affected by it, would be defeated. If the officer is ordered to levy on, but to leave the property with the owner until he shall be otherwise directed, the party undoes, by such an order, all the officer does by the seizure; it works no change of property; it is no levy in respect to third persons.

It has been seen that in Pennsylvania it is not necessary that the officer should remove the property, nor put a person in charge of the goods, nor sell them immediately, if this be done in a reasonable time. I would not, however, think it safe for creditors, at this day, when the condition of the country has so materially changed, to permit the levy to remain without sale of the goods, or some person having them in charge, so long a time as would seem to be authorized by the earlier cases.

Here the judge who tried the cause left it as a fact for the decision of the jury, whether this transaction was intended as a security for the debt, and it would be difficult to imagine how the jury could have come to a different conclusion from that which they did. It is manifest that the levy was to remain in the nature of a security for the debt.

Motion for a new trial overruled, and judgment on the verdict.

TO CONSTITUTE A Levy of an EXECUTION ON PERSONALTY, the officer should enter upon the premises where the defendant's goods are, and take actual possession of them, if it can be done: Beekman v. Lansing, 20 Am. Dec. 707, and note.

SECRET LEVY OF AN EXECUTION UPON PERSONALTY does not bar the rights of third persons: Beekman v. Lansing, Id.

GOODS MUST BE UNDER THE VIEW and within the power of the sheriff to constitute a good levy of an execution: Haggerty v. Wilber, 8 Id. 321; Beekman v. Lansing, 20 Id. 707.

PENROSE v. CURREN.

[3 RAWLE, 851.)

DETINUE WILL LIE AGAINST AN INFANT for goods delivered upon a special contract for a specific purpose after the contract is avoided.

ASSUMPSIT WILL LIE AGAINST AN INFANT to recover money embezzled. CASE WILL NOT Lie against an INFANT to recover damages for the death of a horse which the infant had hired to go to one place, but had driven much farther.

WHETHER AN ACTION WOULD LIE AGAINST AN INFANT for damages occasioned by cruel driving to a horse which the infant had hired, the contract of hiring coming within the exception of necessaries, quære.

CASE brought by Curren against Penrose, who appeared by his guardian, Randall. The plaintiff alleged that the defendant hired a horse and gig from the plaintiff to go to Germantown; that the defendant drove to Chester, in Delaware county, and to other places to the plaintiff unknown, and that by hard, severe, unnecessary, and cruel driving and treatment the defendant killed the horse, it dying on the same day. Pleas, infancy, and that the defendant" was not guilty of the supposed grievances laid to his charge." The jury returned a special verdict finding the the allegations of the complaint, and that the defendant was a minor at the time the acts were committed, and assessing damages at one hundred and twenty-five dollars, and six cents costs. The district court gave judgment for the plaintiff below.

Bouvier, for the plaintiff in error, to show that the action would not lie, cited Manby v. Scott, 1 Sid. 129; Jennings v. Rundall, 8 T. R. 335; Johnson v. Pie, 1 Keb. 905, 913; S. C., 1 Sid. 258; 1 Lev. 168; Curtin v. Patton, 11 Serg. & R. 310; 1 Com. on Cont. 150, 151; Schenk v. Strong, 1 South. 87.

Brewster, contra, cited Wood v. Vance, 1 Nott & McC. 197; Horner v. Twining, 3 Pick. 492; Vasse v. Smith, 6 Cranch, 226.

By Court, ROGERS, J. The law has wisely provided that infants shall not be liable on contracts, except for necessaries. It can not be pretended that here the infant would be liable on the contract of hiring, as the plaintiff has not brought his case within the principle of the exception. The plaintiff rests his right to recover on the fact that the minor was guilty of a conversion by riding to Chester instead of Germantown. He contends that wherever trover is the proper form of action, it will lie as well against an infant as an adult, and in this position it must be admitted he is supported by a decision of a court of high authority in Horner v. Twining, 3 Pick. 492.1 I have examined the case with the attention it merits, and I am compelled to say I can not agree to the principle which is there decided. It is true, that detinue will lie against an infant for goods delivered upon a special contract for a specific purpose, after the contract is avoided. It is also true that assumpsit will lie against an infant to recover money embezzled. To this I fully ́ accede, because the object of the suit, in the first case, is to recover the article itself, or damages for its detention. And this decision is founded in sheer justice, as the privilege of protection is given to the minor as a shield, and not as a sword, nor is it necessary for his safety that he should be permitted to retain the article, when the contract has been rescinded, without paying an equivalent for it. The vendor is remitted to his original rights when the contract has been rescinded, and as a consequence, he may assert them, either by action of detinue, replevin, or trover. It is also altogether proper that money embezzled by an infant should be recovered in assumpsit. The occupation in which he is employed is for the benefit of the infant, and the embezzlement is a tortious act, in which no blame is imputable to the employer. But is that the case here? The infant derives no benefit from the transaction, and what is of more consequence, the plaintiff himself is in fault. The loss which ensues results from the contract of hiring

1. Horner v. Thwing.

with a person whom he is bound to know was a minor, and as such, incapable of contracting. This is a transaction in which parents and guardians have a deep interest, and particularly such as educate their children from under their own eye at a distance in our seminaries of learning. It amounts to this: If the keeper of a livery-stable, or an innkeeper, whose business it is to let out horses and carriages to hire, chooses to trust them to a minor, contrary to the assent and wish of the parent, and an injury is done by the young man in the folly and heedlessness of youth, going to a different place, or further than he intended, the father must either pay the debt or damages to whatever amount they may be, or suffer his child to be disgraced by imprisonment. It seems to me that parents would have much reason to complain of a rule which involves such consequences. If the plaintiff should succeed, there would be no want of pretenses upon which infants might be charged, and there would be an end to the protection which the law so wisely affords them. I can not agree that from the commission of a wrong, a right of action can arise. If the contract of hiring came within the exception of necessaries, as might be, where a horse was hired to visit a sick parent, etc., then the infant would be liable for the consequences, and if injury ensued from cruel driving, or improper treatment, the owner would have an appropriate remedy.

Had the minor gone to Germantown as he intended, then Schenk v. Strong, 1 Southard, 87, would have been an express authority, adverse to the plaintiff's claim. The foundation of the action is contract, and disguise it as you may, it is an attempt to convert a suit, originally in contract, into a constructive tort, so as to charge the infant. So far are minors shielded from the consequences of their own acts, that action will not lie against them, where they affirm themselves to be of full age, nor on a warranty in the sale of a horse: Johnson v. Pie, 1 Lev. 169; 1 Keb. 905. Nor will, I apprehend, trover lie against an infant for goods sold to him, either with or without a knowledge of his infancy; certainly not where he knows the fact of infancy: Manby v. Scott, 1 Sid. 129. The contract being unlawful, no action arises to the adult, who is bound to know with whom he is contracting, and must be aware that such contracts are contrary to the policy of the law. It operates not only as a shield to the infant, but as a penalty upon the adult. Wherever a person has not parted with the property, then he can assert his right, as well against an infant as an adult, as in