#### Lambert and others *against*J. Paulding W. Paulding *against*the same.

The goods of hound by' the ^'cv®(r/°f jjj® *the*execution, acquires a *lien*°f which he prived by the debtor; and'if foreSandactuti ^ Removed out óf thelbajf ¡°[othe other county, taken and soil cution subsl-though the it’ "e“f*a^uhcah‘ sale, acquires a Talk! title to the goods, yet the *proceeds*of such sale in the hands of the sheriff will be ordered to be paid to the plaintiff in the first execution, to the amount of his debt, leaving the residue, if any, for the plaintiff in the second execution.

*CAINES,*for the plaintiffs in the first cause, moved that the sheriff ofthe county of *W estchester*do pay to the plaintiffs in the first suit above mentioned, or to their attorney, out of the monies in his hands, arising from the sale of the sloop *Euphemia,*on the executions in the above causes, the A *1*amount of the execution in the first cause. From the affidavits which were read, it appeared, that on the 11 th of *Au~ gust*last, a judgment was entered up against the defendant, at the suit ofthe plaintiffs in the first cause, and on the 12th of *August,*a *fieri facias*was issued thereon, directed to the sheriff of the city and county of *New-Yor/c,*with directions to levy on the sloop *Euphemia,*belonging to the defendant, then lying in the city, but no actual levy was made. On *Monday,*the 14th of *August,*the defendant being told by his attorney that there would probably be a judgment entered up against him, at the suit of *Lambert*and others, on the 15th of *August,*confessed a judgment in favour of the plaintiff, *312*{W**P.) in the second cause, on ja bond <Iated the 1st of *July.)*conditioned for the payment of 7,370 dollars. The. judgment roll was filed in the clerk’s office, at 2 o’clock, P* M., and an execution issued thereon to the ,sheriff of *New-York;*but the plaintiff’s attorney then learning, for the first time, that a judgment had been actually entered up in the first cause, and an execution issued thereon to the sheriff of *Mew- York,*countermanded his execution, on the same day, and issued a *test, ji, fa,*to the sheriffof *Westches-ter,*which was delivered to his deputy, on the morning of the 15th of *Avgust,*It appeared that the defendant, on the morning of the 14th of *August,*removed the sloop from *Méw-York*to *Tarry town,*in the county of *Westchester ;*and the sheriff of that county there seized and sold the vessel, under the *test.Ji. fa.*so delivered to him in the second suit 5 butthe money arising from the sale, being 1,800 dollars, waá retained in his hands, by an order of the recorder of the city of Mew-York, until an application should be made to this Court. On the 19th of *August,*a *test. fi. fa.*in the first suih was delivered to the sheriff of *Westchester.*

*Caines,*in support of the motion, said, that he did not intend to deny the' common law right of a debtor, to prefer one creditor to another, nor that a judgment confessed for a *honafde*debt, in favour of one creditor, during the pendency of a suit by another, might gain a legal priority over the judgment subsequently-recovered, though confessed with a view to such priority ; but, he said, to warrant that priority, the' execution on the judgment confessed, must be delivered tp the sheriff before the execution sued out on Ihe judgment recovered. Such was the case of *Holbird*v. *Anderson,*(5 *Term Rep.*235.) inaccurately stated by Mr. *Tidd,*in which the execution on the judgment confessed, was in the sheriff’s hands two hours before the execution on the judgment recovered. The reverse was the fact in the case now before the Court. The rule, therefore, *qui prior in tempore, potior injure,*would govern the rights of the plaintiffs in the respective suits»-

*313*Talcot,*contra, for the plaintiff,

Paulding. By the statute (sess. 36. ch. 5. s. 6. 1 *M. R. L.*501. 502.) no execution binds the goods of the defendant, until such execution is delivered to the sheriff, or other officer, to be executed. The provision of the statute prevents the debt- or from making any sale of the property; bqt if the goods remain in the possession of the debtor, without having been levied on by the sheriff on.the execution in his hands, they may be levied on and disposed of, by virtue of any other execution, for a *bona fide*debt, though subsequently issued ; and the purchaser under such subsequent execution, will hold the property. Under this statute, it has been held, “that neither before nor since the statute of frauds, is the property of the goods altered, but remains in the defendant until *execution executed*(2 *Equ. Cas. Abr.*381. per Lord *Hard-wicke. Hotchkiss*v. *M Vickar,*per *Spencer,*J 12 *Johns. Rep.*403. 407.) and the meaning of the words, “ that the goods shall be bound from the delivery of the writ to the sheriff’’ is, that after the writ is so delivered, if the defendant makes any assignment of his goods, *except in market overt,*or by becoming a bankrupt, which is an assignment in law, the sheriff may take them in execution. If two writs of execution be delivered to the sheriff on different days, and the sheriff executes the last writ first, by making sale of the goods, the sale will stand good, and the plaintiff who delivered the execution first to the sheriff, may have his remedy against him. *{Carthew,*420. *Sanford*v. *Roosa,*12 *Johns, Rep.*162. 2 *Salk.*320. 1 *Term Rep.*729. 1 *Lord Raym,*252. 2 *Ventris,*216. 3 *Lev.*69.191. *Lord Raym.*724.) Though a fi.fa, binds the goods, as against the defendant, yet 'the property remains in him, until execution executed ; and, therefore, a sale under a subsequent execution vests a title in the purchaser; and the plaintiffin the first execution is left to his remedy against the sheriff, unless there has been some fault or *laches*on his part. *(Payne*v. *Drew,*4 *East,*523.) The cases referred to, show, that the property of a defendant is not so completely bound, by the delivery of an execution, to the sheriff, but that the former has some control over it, until *execution executed,*or until it is levied upon and sold under an execution subsequently issued, or is transferred by the operation of a *314bankrupt law. The defendant, then, in this case, had a right t0 remove His property before execution executed. It does not appear that when he removed his vessel to *T.*that he knew that an execution had been issued agáinst him; though he expected that there would be such an execution the next day. Even if he had known of the execution being in the hands of the' sheriff, he had a right to remove his property beyond its reach, before any levy was actually made.

Again; a debtor has a right to prefer one creditor to another, and confess a judgment for a *bona fide*debt due, without its being deemed fraudulent, there being no bankrupt law to prevent it. (5 *Term Rep.*235. 420. 425. *Rob. on Fraud.*Com. 491.) (a) Indeed, it is not pretended that *W. Paulding's*judgment was not for a just *debt*then due.

Again; the judgment of *Lambert and others,*was entered up on the 1Í th of *August,*being the *quarto die post*of the *August*term, as a final judgment; but if, as is the opinion of many of the bar, the ruje for judgment should have been *nisi,*final judgment could ns^ have been entered regularly, until the 15th of *August.*

*Caines,*in reply,

said, that he did not deny the law of the cases which hád been cited ; but the present case was easily to be distinguished from them, by considering the parties against whom the applications' were made in the cases relied. on. They were either *bona fide*purchasers, and the attempt was to take from them what they had honestly purchased and paid for, or sherifis who were to be made to pay another’s debt. The contest here is between two incum-brancers on the same subject matter. The *lien*acquired by the first, could not be impaired by any act of the second, either by himself, or jointly with the owner of the chattel. When the *Lamberts*lodged their writ with the sheriff, they acquired a *lien*on the vessel; and when the writ of *W. P.*was delivered to the sheriff, he, or his attorney, knew of the previous *lien*of the *Lamberts.*The subsequent sale of the *315sheriff of *Wesi~Chester,*on the *lest. fi. fa.*of *W. P.*was subject to the *lien*of the execution of the *Lamberts.*By granting this motion, the property in the vessel acquired by the purchaser, under the sheriff’s sale, will remain undisturbed. The purchaser keeps what he has bought; but the proceeds in the hands of the sheriff are subject to the *lien*of the first execution of the *Lamberts. W. P.*in selling, acted for the *Lamberts,*to the amount of their prior *lien,*and for himself as to the residue. The property passed and continued in the vendee. From these facts, and the consequences to be deduced .from them, it is evident, that the granting of this motion will leave the principles of the cases cited untouched, and be perfectly consistent with them.

(a)

 Vide *Pickstock v. Lyster,*3 *Maule*& *Selwyn,*371.4 *East Rep. 1. Jackson v. Brownell, 3 Caines, 222. 5 Johns. Rep.*335. 412. 3 *Johns. Rep.*71.

*Per Curiam.*

The delivery of the *fi. fa.*in the s<u ? f *Lambert*and others, against the defendant, to th*' si> of the City and County of *New-York,*bound the gm-ti, of the defendant, then in his bailiwick; and the pi iinni-, in that execution, cannot be deprivtd/bf the *lien*on the sloop, which was then lying in *New York,*by the act of the defendant, in removing the vessel into another county. He would be liable to an action, at the suit of the sheriff, for so removing the property. We therefore grant a rule that the sherifi of *West Chester*pay over to the plaintiff in the first suit, the 1,800 dollars, the proceeds of the sale of the sloop *Euphemia,*remaining in his hands.

Motion granted.