#### *John Grooms*v. *Joseph Dixon.*

Defendant traded for a horse bound by a *fi. fa.,*and again traded him to the plaintiff. The sheriff levied on the horse, which defendant had exchanged for the one bound, but that not selling for a sufficient sum to satisfy .the *Ji.fa.,*he levied on and sold also the horse in the plaintiff’s possession. The' plaintiff then brought his action against defendant on the warranty. The Court held that the lien of the *fi. fa.*was not destroyed by the fact that the sheriff had levied on the horse substituted for the one originally bound by th *v ji.fa.,*and that the second levy was properly made; they therefore sustained the circuit decree, giving to the plaintiff the value of the horse taken from him by the sheriff, on the ground of a breach of warranty.

*Before*Evans, J., *at*Marlborough, *Fall*Term, 1849.

SUM. PRO.

It appeared, from the evidence, that one Dorus Cook was indebted to Cook and Sutherland, in the sum of ninety-three dollars and eighty cents, with interest and costs, for which an execution was lodged in the sheriff’s office. Cook was the owner of a horse, which was bound by a *Ji.fa.*This horse he swapped to Dixon for another. Dixon swapped the horse *150to the plaintiff. The sheriff seized the horse which Cook got from Dixon, and sold him for thirty-one dollars. There being still a balance due, and Cook having no property, the sheriff levied on the horse which Cook swapped to Dixon, in the plaintiff’s possession, and sold him. He was proved to be worth fifty or sixty dollars. The plaintiff having thus been deprived of the horse, brought this action on the warranty. The Circuit Judge was of opinion the lien of the execution was not destroyed by the fact that the sheriff had levied on the horse which Cook got from Dixon. The lien attaches on all property of the defendant, no matter how acquired. If Cook had sold one horse for money, with which he had bought another, *thef./a.,*without losing its lien on the horse sold, would attach on the one bought. If this horse had been worth $100, enough to pay the debt, and the horse received in exchange was worth only twenty, and the sheriff had levied on the inferior horse, and sold him for that sum, would that prevent him from seizing and selling the other? There may be an abstract injustice, sometimes, in permitting a creditor to have this double satisfaction, but he did not see how it can be prevented in a court of law. He therefore decreed for the plaintiff the value of the hoise, on the ground of a breach of warranty.

Defendant appealed, on the ground that the lien of the execution creditor' upon the horse that Dixon obtained from Cook, was lost or waived by the creditor, when he procured the same to be levied on the horse that Cook obtained from Dixon, by way of exchange or substitution — and that the subsequent levy on the last-named horse was a trespass, for which Grooms had his right of action against the sheriff.

*Dudley cf*Johnson, for the motion.

Thornwell, contra.

*Curia, yer*Wardí,aw, J.

The decision which was made on the circuit is approved by this Court. The reasons which are given in the report, when they are carefully considered, will be found to answer the arguments which have been urged here.

An execution creditor may, no doubt, assent to the extin-guishment of the lien of his *fi. fa.,*upon any article, or to the substitution of another article, for one upon which the lien has attached; but if, without any such assent directly given, the enjoyment of the creditor of proceeds, which have come from an article, necessarily discharges the lien on *th*at article, great embarrassments in the execution of final process would ensue, involving difficult investigations and amounting almost to the restriction of the lien to the value, of the articles which were in the debtor’s possession at the lodgement of *thefi.fa.*The defendant here thinks that the *151equity he urges should be confined to cases of *swop,*— where articles of equal value are substituted one for the other. But the principle he contends for would embrace all cases where, by transfer of an article which was subject to the lien, valuable proceeds have been obtained, which the creditor has received. All trade is but barter, either immediate, or through the medium of money.

The analogy, which has been insisted on, of a widow’s dower being restricted to one only of two tracts of land, where the husband has made an exchange of lands, has no force; for, to an exchange of lands, at common law, belonged peculiar incidents, which do not attach to a horse-swop.

The motion is dismissed.

Evans, Frost and Withers, JJ., concurred.

*Motion refused.*