Curia, per
Woodworth, J.(After stating the case.) The specification filed with the justice was substantially a compliance with the statute, (sess. 41, ch. 94, s. 7.)
The bill of sale must be considered in the nature of a mortgage, and the possession of Curtis consistent with it. It provides that the articles conveyed should be at the disposal of Joab Lawrence, that he should have the right to turn them out to be sold on the execution of Hutchinson, or dispose of them at private sale. Lawrence, then, had the right of taking possession at any time when he should think proper. Curtis had no right to detain them for any definite period. He was subject to the pleasure of Lawrence. He had, indeed, an equitable interest, in the nature of an equity of redemption, in the goods, and a right to any surplus, if they were sold. If this be so, I do not perceive that they could be considered, in judgment of law, the goods and chattels of Curtis, so as to be subject to the execution of Earll." That could not attach on an equity, which was all that remained in Curtis. If, therefore, it be conceded that the defendant in error acquired no title under his purchase, still he had the lawful possession of the horse, and might well maintain an action against the plaintiff in error, who derived no authority from the execution to make the levy and sale. I incline to think that the decision of this cause might be placed on that ground.
If, however, I am mistaken on this point, then the question arises, whether the Common Pleas execution of Earll, having been delivered to the sheriff before the Justice’s execution was levied, is entitled to a preference. If the property was bound from the time of the delivery, and the defendant in the execution could not make a valid sale of it afterwards, the law will not permit him to do the same thing indirectly, by confessing a judgment and authorizing a judicial sale.
But a more difficult question is presented here, and that is, whether the purchaser under the justice’s execution is *468not protected 1 I am not aware that this point had been' decided by our Courts.
The statute declares that no writ of execution shall bind the property of the goods, but from the time the writ shall be delivered to the sheriff: (1 R. L. 502;) . The meaning-of these words is, that after the writ is so delivered) the defendant cannot make an assignment, or do any act to divest the right of the sheriff to take the goods. The delivery does hot alter the property; but both before and since the statute of frauds, it continues in the defendant until executiori executed. (12 John. Rep) 403.) The delivery of the execution dries riot, however, in every case, authorize the sheriff subsequently to take the goods and sell them. In Payne v. Drew, (4 East, 538,) Ld. Ellen-borough very fully arid accurately examined the cased off this subject and observed, that “ the sense in which, and the extent to which goods aré said to be bound, is, that it (the fi. jet.) binds the property as agairist the party himself,aiqd all claiming by assignment from, through, or under him} but it does not so vest the property in the goods, absolutely, as to defeat the effect of a sale thereof,- made by the sheriff under an executiori.” A sheriff Cannot maintain trover for goods taken out .of trie possession óf the party,agáinst whom the execution issued, until he has iriade a levy. He has only a right to seize the goods' if he can find them. (12 John. 403.)
It is well settled, that if two writs oí fieri facias are' delivered to the sheriff, and he sells under the jtmior execution, such salé cannot be avoided, and the party has no íémedy but against the sheriff. Thu property of the goods is bound by the salearid cannot be taken by the execrition first delivered. The reason given is, that sales made by the sheriff ought riot to be defeated; fob if they were,no than would buy goods levied upon by a writ of éxecution.” (1 Ld. Raym. 252. 4 East, 523.12 John. 163, 403.)
The present casé is distinguished by tiffs: that heré. aré different officers. But, if the principle be sound, it follows,that any junior execution, first leviéd, and a salé under it, confers a good title óri the purchaser. If the éxecutions are in the hands of the same officer, the plaintiff in the first ex*469ecution has a perfect remedy against him; for it" is his duty to sell on the first; and if he does not, he "is answerable. If the executions are in the hands of different officers, then the liability of the sheriff to whom the first execution was delivered, would depend on the question, whether he had been guilty of negligence in not having made á levy before the sale under the second execution. If there bé no negligence, I apprehend the party would be without redress, unless the money produced by the sale under the second execution happened to remain in the hands of the sheriff, when an application was made to the Court for a rule directing to whom it should be paid over. This was done in Lambert v. Paulding, (18 John. 311.) If, however, it should appear that the money actually raised on the second execution had been paid over to the plaintiff in that execution, this remedy would fail; and consequently, the lien arising by the first delivery would become ineffectual. Whatever might be the result of an application against an officer of. the Court, directing him to pay over money, the execution of this summary jurisdiction would not be used to enforce such an application against an officer of another Court, over whom this Court has no control. But if otherwise, it does not affect the present question, which is between* the sheriff and the purchaser under the second execution. The general principle, it appears to me, goes the whole length of upholding the title of the purchaser under" the second execution, provided the levy and sale were perfected,, before a levy on the first. The fact that one execution issued from this Court,, or the Common Pleas, and the other from a Justice’s Court, cannot change the principle which governs.
In the case of Lambert v. Paulding, it appeared that* the vessel was* bound by an execution delivered to the sheriff of New York. It was removed to* Westchester; and there levied on and sold. The title of the purchaser was not even questioned. It was" conceded on the argument,, that the property in the vessel acquired' by the purchaser remained undisturbed. The claim was, that the proceeds in the hands of the sheriff were subject to the lien, and the Court directed the sheriff to pay them over. This case is *470very much in point. The only difference is, that the putehaser derived his title from a constable’s sale, and not from a sheriff’s. But the constable, in this case, had the same right to levy and sell the horse, that the sheriff of Westchester had to sell the vessel; If so, the purchaser’s title is valid. It was not, then, competent for the sheriff to take the horse, by virtue of his execution, from the premises of the defendant in error; and the judgment must be affirmed.
Judgment affirmed.