
    J. & G. Kellogg against Griffin.
    The plaintiff, having a prior judgment, issued a fieri fia-das thereon in January, with instructions to the sheriff “to make a levy on the property of the debtor, but to do nothing-until ordered, unless crowded by younger executions, but by no means to let the execution lose its preference.The sheriff did nothing, except merely to receive an inventory of the persona] propertyof the debtor, until another execution was delivered to him in May following, at the suit of a subsequent creditor. Held, that the first execution was dormant, and constructively fraudulent, as against the subsequent execu-
    THIS was an action against the sheriff of the county of Dutchess for a false return to an execution, and was tried at the Dutchess Circuit, in April, 1819, before Mr, Justice Woodworth,
    
    The plaintiffs gave in evidence a judgment against John Cowles in the Court of Common Pleas of Dutchess County, entered the 10th of September, 1816, for 1,921 dollars and 60 cents debt, and 10 dollars costs, and a fieri facias issued thereon, delivered to the defendant the 13th of October, 1817, returnable the third Monday of January following, with directions to levy the sum of 960 dollars and 80 cents, with the costs and interest. The defendant returned the execution, which was filed in the clerk’s office, the 8th of September, 1818, with an endorsement thereon, “nulla bona, for residue, in consequence of the avails of real and personal property of the defendant being claimed by George B. Evertson, Esq.”
    The defendant gave in evidence a judgment against Cowhs in favor of G. B. Evertson, in this court, January 12th, 1818, for 5,278 dollars and 14 cents debt, and costs, and an execution issued thereon, delivered to the defendant the 5th of May, and returnable the 16th of May, 1818.
    It appeared in evidence that the plaintiffs’ attorney gave instructions to the defendant, at the time he delivered the execution to him, “ to make a levy on the property of C.; but to do nothing, until ordered, unless crowded by younger executions, but by no means to let the execution lose its *prefer-enee.” The sheriff made no actual levy on the property of C., but an inventory of all the personal property which had been made out by the plaintiffs and C., before the plaintiffs’execution issued, was delivered to him, with directions to get a good man to receipt the property. A receipt, by one Reed, was endorsed on the inventory. At the time the inventory was taken, the plaintiffs told C. that if Evert son forced the sale of the property, they (the plaintiffs) would bid it in and leave it with C.
    
    On the 6th of July, 1818, the defendant sold the personal property of C. for 542 dollars and 42 cents, and the real estate to Buertson, for 84 dollars and 5 cents, after deducting the expenses; and on the 20th of August, 1818, he executed a deed for the real property to Evertson, reciting both judgments and executions. It was admitted, that the plaintiffs were entitled to the proceeds of the real estate, their judgment being the eldest; and the plaintiffs, also, claimed the proceeds of the personal estate, but it was insisted, that the plaintiffs’ execution had lost its preference. A verdict was taken for the plaintiffs, for 84 dollars and 5 cents, subject to the opinion of the court on all the evidence, the substance of which is above stated.
    
      Oakley, (Att. Gen.) for the plaintiffs.
    A party may purchase property at a sheriff's sale, under an execution, and leave it in the possession of the debtor, without its being fraudulent. (Watkins v. Birch, 4 Taunt. 828. Kidd v. Raivlinson, 1 Bos. fi Pull 5>9. 15 Johns. Rep. 430. note.) The judgment of the plaintiffs was bona fide. The question, then, is, What delay of the execution will make it dormant l The time cannot begin to run, until after the return-day of the execution, for the sheriff is not bound to do any thing before. Can it be said, that suffering the execution to lie from January to May, there being no other execution, is evidence of fraud ? Such a doctrine would be very injurious to debtors, whose property would, often, by an immediate sale, be sacrificed, {Doty v. Turner, 8 Johns. Rep. 20.) In the case of Storm 8f Beelcmctn v. Woods, (11 Johns. Itep. 110.) which is the strongest case on the subject, the goods, after a seizure by the sheriff, were left in the debtor’s ^possession for above a year, and by the express direction of the plaintiff to delay the sale. The facts of that case are very different from the present. In regard to the equity of- the case, both parties are equal, and- the delay of the sale, under the plaintiffs’ execution, is not fraudulent.
    Again ; no actual levy was made on the property of C., except by taking the inventory on the first execution. No sale can be made, unless there has been an actual levy before the return-day of the execution. (2 Caines, 244. 4 Johns. Rep. 456. 18 Johns. Rep. 255.)
    
      J. Tallmadge, contra.
    The plaintiffs’ execution, by the directions given to'the sheriff, and the subsequent delay, became dormant. No time has been fixed by the court, within which an execution may be delayed without becoming dormant. The decisions are, that suffering the property to remain in possession of the debtor, after they have been levied upon by the sheriff, is, prima facie, fraudulent as against subsequent credit-org. _ 418, ] l Johns. Rep. 110. 15 Johns. Rep. 428. 430. and note. 7 Mod. 37. 2 Term Hep. 596. 1 Lord Ramn. 251. 4 Dallas, 358.) If the plaintiff lies by for an 'd ii* i* . . i* *i i i unreasonable tune, his execution is to be considered as dormant.
    But we contend, further, that the plaintiffs’ execution has lost its preference, by the improper use which has.been made of it to cover the property of the debtor.
   Per Curiam.

The contest, in this case, is for the proceeds of the personal property ; for it was conceded, that the plaintiffs were entitled to the avails of the real estate. We are inclined to the opinion, that, according to the decisions of the court which have followed the rule laid down in the English courts, the plaintiffs’ execution must be considered as dormant, and constructively fraudulent. The evidence warrants the inference, that the plaintiffs issued their execution, not with an absolute intention of collecting their debt, but partly, at least, with a view to cover the property of the debtor, for his use. Having made use of their execution in a manner which the law deems fraudulent *as against other creditors, it was in vain that they told the sheriff, “ by no means to let their execution lose its preference.” The sheriff' has no discretionary power in that respect. The law -determines the preference. (Doty v Turner, 8 Johns. Rep. 20. Storm v. Woods, 11 Johns. Rep. 118.) The plaintiffs, consequently, are entitled to the proceed - of the real estate only, with interest from the 20th of August, 1818, the date of the sheriffs deed to Evertson.

Judgment accordingly. 
      
      
         Vide Dickenson v. Cook, post, 332, merely leaving property levied upon, in the possession of the defendant in the execution, though with the plaintiffs' consent, is not, per se, fraudulent, either as against subsequent creditors or pur chasers; otherwise, where the sheriff is directed to delay the execution or sale. Kew v. Barber, 3 Cowen, 272. Russell v. Gibbs, 5 Cowen, 390. Power v. Van Buren, 7 Cowen, 560.
     