Curia,
per Woodworth, J.
It is found, by the special' verdict, that on the 19Ih November, 1818, the defendant in the Court below sold a horse to the plaintiff, and received in payment a note against a third person.
In October, previous to the sale, the Sheriff levied on the horse, under an execution in favour of A. Rust, against Peter W. Yates, the horse then being his, and brought the horse to Benedict, who purchased" the execution, and directed the Sheriff to return and leave the horse in the custody of Yates. Yates soon after sold to Rew, the plaintiff, who purchased in good faith, without knowledge of the levy. In November, the Sheriff received another execution, in favour of Benedict', against Yates, and levied on all his property. The Sheriff took the horse'from Barber, and sold under both executions. Benedict became the purchaser of the horse.
If the plaintiff’s title has failed, he has good cause of action against the defendant. That will' depend on the question, whether leaving the horse in the possession of Yates, rendered the execution fraudulent ? There was no direction to suspend or delay the execution, or permission to Yates to use the property. The case of Whipple v. Foot, (2 John. 416) is relied on, by the plaintiff in error, to shew that the execution was fraudulent. In that case, the Sheriff levied on wheat growing, and several months afterwards, when the wheat was ripe for harvest, cut and carried it away, and sold it at auction. A subsequent execution was issued, and levied on the same wheat, in the sheaf. It was held', that the first execution was not'dormant, the Sheriff having taken all the possession of which the nature of the chattel was susceptible that it could not be considered as coming within the opera-*279Son of the rule, that if a creditor seize the goods of his debtor on execution, and suffer them to remain in his hands, the execution is deemed f audulent and void against a subsequent •execution. As the chattel, in that case, could not be removed before harvest, the execution could not be affected by the omission, admitting that the single fact of directing property levied on to remain with the debtor, until sale, would, in general, render it fraudulent. It was not necessary to decide this last point, for the cause did not depend on it. But mere possession by the defendant will not affect the creditor’s claim, or give a second execution priority. The cases cited do not support the doctrine to that extent. In Edwards v. Harben, (2 D. & E. 596) it was held, that where an absolute bill of sale was given, and the creditor agrees to leave the goods in possession of the debtor, it is fraudulent against creditors. But this, I apprehend, has no connexion with the question of permitting the goods to remain with the defendant in the execution, after levy, until the day ol sale. The case in 7 Mod. 37, referred to by the Court, the creditor caused a levy to be made, but would Sheriff’ proceed faither, and sulieied the goods to remain in the custody of the debtor. This was held to be a fraudulent execution, and that a second execution might seize the same goods. 1 he ground here evidently was. making use of the execution asa cover, by directing the Sheriff not to proceed; and is in accordance with the cases in our Courts, where executions have been held dormant, in consequence of directions given by the creditor, to delay,,,and not proceed : but it is no authority to prove, that the mere possession by the debtor will produce the same result, although the sale lakes place as early as the return day of the writ, or within a few days after. The broad principle laid down in Whipple v. Foot, is recognized in Storm v. Woods, (11 John. 110) and would seem to sanction the doctrine contended for; butitmust be understood, that when the Court say, “ suffering the goods to remain in the hands of the debtor, the possession is deemed fraudulent,” that the debtor retains such execution in consequence of instructions by the creditor to delay, or not to proceed on the execution. The subseqent cases show, that *280the latteris the.ground upon which this doctrine rests. Thus, in Doty v. Turner, (8 John. 20) the plaintiff, by his agent, directed the Sheriff to levy on the property, and informed him, that if it remained in the possession of the 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. After the levy, he did nothing further, until after the return day, and a second execution delivered, when he sold on both. It was held, that as there was no instruction to delay the execution after the seizure, or to let it sleep in the Sheriff’s hands, the first execution did not lose its preference. The decision is founded on this, that there was no direction for delay. The Court put it upon this ground, and observe, “ therefore, the case does not come within the rule of the common law recognized in Whipple v. Foot.” All the cases I have met with, proceed on the principle, that the creditor had interfered and directed a delay of sale, and left the goods with the debtor. In every such case, a sec-i^rifaMBttion would have the preference. The Sheriff, iflUPPPtfully took possession of the horse and sold him, whereby the title of Barber failed.
The only remaining question is, whether he has selected the proper form of action. The acceptance of the note of a third person, was payment and satisfaction for the consideration money. (Whitbeck v. Van Ness, 11 John. 409. 2 Esp. R. 517.) Assumpsit is the proper form of action, where there is a warranty, express or implied, in the sale of a chattel. (6 John. 168.) A warranty of title is implied, (1 John. 274.) The consideration upon which money -was paid having failed, it may be recovered back under the count for money had and received.
I am of opinion, that the judgment of the Court below be affirmed,
Judgment affirmed.