
    Jeremiah Matthews vs. John Warne and John Stiers.
    Where an execution issues out of this court, and another out of the Court ■of Common Pleas; and a question arises as to the priority of said executions, or the appropriation of moneys raised under them, application for directions to the sheriff with regard to them may be made either to this court or to the Court of Common Pleas; and the decision of the court which is first made on the subject will be conclusive. It is not the practice to file reasons, or make a state of the case, upon an application to the court to direct the sheriff in regard to the appropriation of moneys raised on execution.
    The utmost length of time that the law allows for executing a writ is the day whereon it is returnable. Per Foed, justice.
    The sheriff .has no power over any goods, but such as he has levied his execution upon. Per Fobd, justice.
    Goods acquired by the debtor after the return of a prior execution, must be applied exclusively to the payment of a younger execution, by virtue of which they have been levied upon. Per Foed, justice.
    
      A prior execution kept on foot, with an intent to delay and defeat other creditors, will be postponed to a subsequent execution.
    What facts amount to evidence of this fraudulent intent, see this case.
    The following rule was taken on behalf of Jeremiah Matthews, a creditor of Henry "Warne, who had obtained a judgment in the Court of Common Pleas of Hunterdon, and issued execution thereon, viz :
    John Warne, Sr. Henry Warne. v.
    
    It is ordered by the court, that the administrators of John Warne, Jr., who was the plaintiff in the execution, now deceased, and that John Stiers, the plaintiff in another execution against the said Plenry Warne, issued out of this court, do respectively shew cause before this court, on the first day of the next term of this court, why the moneys arising from the sale of the property of the *said [*296 Henry Warne, lately made by Gabriel Hoff, sheriff of the county of Hunterdon, or his under sheriff, or so much thereof as will be sufficient to satisfy an execution issued out of the Court of Common Pleas of the county of Hunterdon, at the suit of Jeremiah Matthews against the said Henry Warne, should not be applied to the payment of the moneys due on said last mentioned execution; and that the said parties have leave to take affidavits. On motion of Saxton, attorney for the said Jeremiah Matthews.
    In pursuance of this rulo, the following affidavits were taken:
    Wilson Housel, Esq., being sworn, saith, that he has frequently sold Henry Warne, Jr., hides; thinks he has sold him hides within a year; but is not certain; he has sold him calf skins within that time, some since April last, twenty or twenty odd; cannot ascertain the number of hides sold him. Deponent is a merchant, and in the habit of taking in hides; the usual time of taking hides, is from the first of September, until about the holidays. Henry Warne is a tanner. He never told deponent, as he recollects, that he wanted the hides and shins to tan. This was after the first sale and before the last by the sheriff. Deponent has been in the habit of buying dressed leather and calf skins of H. Warne. He has had the following leather of Henry Warne, which stands credited to him’in deponent’s books: 1826, July 13, three calf skins, three-
    sides of upper leather; August 28th, two calf skins; October 5th, four calf skins, four sides of upper leather; 27th, four calf skins, one side of upper leather, one side of sole leather, two kip skins; Dec. 1, one side of upper leather;. 1827, Feb. 22, three sides of upper leather, four calf skins.
    Being cross-examined on the part of Henry Warne, saith, that Henry Warne told him that he had or could sell the-hides (he is not positive as to his expressions); does nob recollect that he said that he had or could sell the hides to-Henry Eckle. Deponent does not know whether the hides-were taken to H. Warne’s tan-yard or not. Henry Warneat one time told deponent that he was dealing as an agent ;■ cannot tell when. They had been dealing before and since he told him that he acted as an agent. This was since the first sale, but whether before or after the last sale, he does not recollect. Being re-examined on the part of Jeremiah Matthews, saith, that he thinks that he has sold Henry Warne hides-during the last fall season of selling hides. Deponent thinks *297] *it was some time last season, when Henry Warnetold him he was dealing as an agent. Plenry Warne is one of the sons of John Warne, deceased. Deponent doe& not know what H. Warne did with the hides he bought last fall. Being cross examined by Henry Warne himself, says, that he thinks it likely, that Henry Warne told him, at someone time, when he was dealing with defendant, that he acted as an agent. Mr. Warne was not in the habit of coming to his store except on business.
    
      John Eockafellar, being duly sworn, saith, thgt he is the under sheriff of the county of Hunterdon. He had the execution in his hands of Jeremiah Matthews against Henry Warne. The sale of Henry Warne’s property was advertised for the twenty-sixth day of March last. The deponent being shewn the paper marked exhibit A, on the part of J. Matthews, says that is the vendue list of Henry Warne’s property sold under that advertisement; he had advertised the property under one other execution besides Mr. Matthews. John Warno, Sr., was that one. John Warne, Sr., did not, at that time, direct him to sell on his execution. Some time after he received the execution of John Warne, Sr., he gave him a stay on tho execution until further orders from him; and ho never countermanded those orders or told him to proceed. John Warne brought the execution, and he thinks a list of the property of the defendant, on which ho wished the levy to be made. He did not request deponent to go and take charge of the property. He never went to the house to make the levy or take charge of the property; he made the levy from the said list. The paper marked exhibit B. is the stay of the execution given by Mr. Warne to deponent, mentioned by him. Being cross examined by Henry Warne, saith, that he had no older execution in his hands against Henry Warne than the execution of John Warne, Jr. He thinks that Mr. Matthews’ execution was the next in his hands. Deponent had no conversation with Jolm Warne, Sr., respecting his execution after the date of the stay; he had conversation with his attorney about it. He did not understand that the stay given to him by Mr. Warne, was to operate in prejudice of his execution. After receiving Mr. Matthews’ execution, he thinks he did not go to Mr. Warne’s house to make the levy, but took it from the former list given to him by John Warne. He thinks he had the execution of Mr. Matthews before the death of John * Warne, Sr., and thinks he advertised [*298 about ten days before the day of sale. He recollects, that Mr. Miller, ¿the attorney of John Warne, said something to him about Warne’s execution ; that it takes its turn or something to that effect; but whether before or after he advertised, he cannot tell. John Warne died the last of February. The administrators of John Warne, deceased, were present at the sale, and claimed the proceeds of sale, of which he paid .them part. The other part he holds in his hands for Mr. Matthews, the balance (the amount of the green grain and a colt) admitted to be acquired after the levy of Mr. Warne’s execution.
    Being again cross examined on the part of Henry Warne, says, that he generally endorses his levy' on executions shortly "before he returns them at court. ■ It is not his practice to endorse his executions at the time he makes a levy. He thinks he did not enter the levy and inventory on the execution, at the time he was at Henry Warne’s and took the security. He thinks he did not endorse it on the execution long before May court. He thinks that the green grain in the ground, the colt and the steelyards, and turkeys, were all the articles that he levied upon on the execution of J. Matthews, which were lot levied upon on the execution of John Warne, except, perhaps, some small articles he does not recollect.
    Ely Derumple being duly sworn, saith, that he has lived-with Henry Warne one whole year, and afterwards worked for him the two last summers, until about ten days past; in 1826, he began to work with him about the first of March, and continued until about the first of November, eight months. He worked in the tan yard when work was to be done in the yard. In the year 1826, after July, PI. Warne, kept taking in hides and selling out leather, as he had done pretty much before, until the time deponent left him. Henry Warne took in hides last fall, and hung them up in the bark-liouse. These hid.es were worked in the last spring. The nineteen hides in the hair, and the twenty-one-hides in the layer, that were sold at the vendue, were part bought in the last fall, and the 'other part .bought in the last spring, at the time Mr. Rockafellar was at Mr. Warne’s and made the levy; the hides hung up in the bark-house before the vendue, the forty hides were worked into the lime vat. lie began to take in hides in the fall, when people began to kill their beef. He recollects *Mr. Warne [*299 got a load of dry hides of Wilson Housel the last spring; they were among the forty. The five horse hides sold at the vendue, were got part in the last fall and part in the winter. He thinks that the single horse hide sold at the vendue, was bought last fall a year. The lot of calf skins, one of 20 and the other of 21, were in the vats, and were taken in this summer a year ago. The 13 green calf skins hung up in the bark-house, and were taken in last fall and last winter. There were several calf skins in the shop cellar that were tanned. They must have been taken in this last summer two years ago. The sheep skins sold at the vendue, were taken in the last summer a year ago. The red heifer with the white face, Warne got this last summer a year, before harvest. The lot of corn, sold in the ear, was raised last fall, and the potatoes the same season. He fatted four or five hogs the last fall; they were not sold at the vendue, the meat of these was sold. Witness does not think Warne had any single harness made last fall, when he left him. Witness helped make one set sold at vendue. The other set was made when he was gone last winter. After the vendue, John Warne took away the sheep, the little wagon, and one set of one horse harness. Does not recollect that John or Samuel Warne took away any of the other property sold at vendue. Henry has continued to use, and disposed of the rest of the property, as if it was his own. He made use of the grain, meat, &c. in his family; never knew that he weighed or measured any of it; he fed up the fodder to his creatures. John was once at Henry’s to try to get the property, but did not get it. Henry has continued to sell the leather and harness, as if it was his own property, up to the time witness left him. Sold a set of new two horse harness to Daniel Vansyckle; sold part of a set of one horse-harness to Stephen Yard. Let Henry Lot have a-set of two-horse harness for a colt. The colt was delivered before the vendue, and the harness after. Sold Charles Voorhees a set of harness, the third of this last August. Henry has been finishing the leather sold at vendue and selling it at the-shop; he has taken some to Milford and traded it out in the store. Henry had six cattle last summer in July; he killed two last fall; lie had four horses at the time of the levy on Warne’s execution; sold two of them last fall to John Horton, or Joe ; he got eight dollars for the two; they were old and *300] worn *out; he would have killed them if he had not-sold them; one he traded an old mare for, two years ago. He had a pretty large flock of sheep last summer a year;. he sold some to the butchers and killed some before thevendue of last spring. Henry had a piece of flax last July was a year; lie sold the flax seed to John Eckle; the oats-he fed up; there was but little. The corn and potatoes he had last July a year, he used. Witness does not think Henry had two hundred calf skins last year, not more than half that number. Witness does not think Henry had one hundred and fifty sides of upper leather last July a year; not more than half that number ; does not think Henry had sixty raw beef hides last July was a year, nor near that number;, he could not have had many in the bark house at that time of year; does not think he had sixty raw calf skins last July was a year, nor should not suppose he had the half of them ; does not recollect that Henry had any sets of one horse-harness at that time, if he had, witness thinks he should have known it. Henry had but two new riding bridles in his shop last season; he had one new saddle in the shop two-years ago last summer, which he sold before last summer;. he had no new saddle, but had one old one. Witness heard Henry say, that he made his inventory pretty large in saddles, &c., that if he made any, the levy would cover them. At the time of the sheriff’s sale last March, witness claimed .a sheep skin, a hog’s hide, and a horse hide, and a deer skin. The horse hide was his, and not the others. Mr. Warne told him he might claim them if he was a mind to, or something to that purpose ; but he did it pretty much of his own accord. This summer a year Mr. Warne'gave him five dollars a month; he worked for wages; the last summer he worked for six dollars a month; there was a lease wrote between Henry Warne and witness the last summer. Witness believes it was done pretty much to keep Mr. Matthews out of his money. The lease was made at Mr. Warne’s request. Warne said he wanted the lease made to keep Matthews from getting his money. Witness saw Mr. Warne on Saturday last at caucus meeting. He requested witness not to attend to-day. Warne spoke to him again to-day, and requested him to go away. John Warne, sen., lived about a mile from Henry and Samuel; Samuel lives at the same place; Samuel, and the old man in his lifetime, were frequently at Henry’s. At the time the sheriff was *at Warne’s and made the levy, there were a pair of [*301 check lines and some traces in the shop; they were not sold at the vendue; they were put out of the shop at the time of the vendue. Henry put them in the barn. He believes they were hid in the hay mow. Witness thinks that the paper marked exhibit H, is the handwriting of Henry Warne; it runs in his head that he has heard Henry say, that he made the list sent the sheriff, and marked D.
    Being cross-examined, says, that he is not willing to swear that any of the hides sold at the vendue, wore the same TIenry bought of Wilson Housel the last fall; but knows that Henry took in hides at home. He will not swear positively that any of the hides sold at the vendue were the same taken by Mr. Warne at his shop the last fall, but does not think it likely that Henry would have taken them away and got others in their place. He might have done it last winter, and witness not have known it. Witness will not swear he did not do it. He believes he will he willing to swear that the hides sold at the vendue, were the same that were there when Mr. Bockafellar was there; he believes they were the same, because he was there all the time and helped work them in the lime; he will swear that some of the hides-were the same that were there when Mr. Bockafellar was there. Some of them were particular hides that he knew. He helped bring a load from Wilson Housel’s; helped hang them up in the bark-house, and helped work them in the vat. The bides that he speaks of now, were the bides brought from Honsel’s this last spring. Hone of the hides brought from Housel’s this spring were marked. that he knows of. They were brought home, as usual, doubled with the hair side in. Some were spread out in the wagon when they loaded them; when they were brought home they were hung upon poles in the bark-house ; brought them home in the night a spell; cannot say how long they hung there;, they hung there a week or so. There were some spotted hides which he hung up, which he knew, and helped work them in the lime; he believes the hides taken out of the vat and sold, were the same hides he helped to work in; he believes them to be the same hides, because he never knew Mr. Warne to take any hides out and take them off. He is-not'willing to swear that Mr. Warne did not take them out;, but he does not believe he got up in the night and took them *302] out. Mr. Warne took leather *to Housel’s, and took hides for it. Witness did not always go with him; believes-he took leather to Plousel’s when witness went with him for the load of hides last spring. His customers got their leather of him and brought him their hides; has heard him, when his customers offered to pay him for leather, ask them if they had no beef hides, he would rather have hides than money. The leather that he was dealing in last fall and spring must have been in his possession either in bides or leather, about a year. The harness which has been men-tioned, was made out of Henry’s own leather ; that leather must have been in his possession more than a year. Witness says, that when the administrators of John Warne, dec’d, took the wagon from Henry’s, they took the harness and collars in it, and sold one set of harness and a good many collars at the vendue of the deceased. The last spring witness went with Henry to Samuel Warne’s, and got some hides and skins, and took them to tan. He does not know how many. There was a large load; he set on them to keep them down. There was something said about Samuel’s paying him, Henry, for tanning. The hides were upon Samuel’s wagon when they went there. After they loaded the hides and skins on Henry’s wagon, Samuel took one of them off; he wanted it for his own use. Samuel was in the habit of getting leather the last spring and summer of Henry. Does not recollect that Samuel ever got leather there before the last spring and summer. The old man used to get leather there perhaps for Samuel, as well as for the rest of the family. Witness is not willing to swear positively that Henry had not as many calf skins as lie had on his list last July a year. Sometimes put as many as sixty calf skins in a vat. Witness does not think Henry had more than two vats with calf skins in the last summer was a year; they -were pretty near full. Witness thought when examined in chief respecting the calf skins, they meant green skins. Henry might have two hundred calf skins tanned and in the vats last July was a year. Does not think that Henry had sixty green calf skins last July was a year; because they worked them in j ust before harvest. He was in the habit of purchasing calf skins at the store in considerable quantities. Witness does not think Henry got many calf skins last July was a year, just after harvest; thinks he bought his skins in the fall, and worked them in late. Witness *never counted the number of sides of upper leather ; [*303 but does not think there was one hundred and fifty ; he was in the habit of helping tan them. Does not think there was more than a hundred, if there was that. He never added the number in the several vats together. In July, 1826, witness says Henry had one saddle that he used; an old one that hung up in the barn, worn out, and one old one in the shop, that he calls a tree. The large skirts are off and pad out. Witness recollects that Henry had four bridles in July, 1826 ; two new ones in the shop, and two old ones that they used; cannot say that Henry wasted or destroyed or trifled away any of his property since July, 1826, and before the vendue; he took good and prudent care of his property during that time, and directed witness to do so. Witness does not know but Henry’s property was as valuable last spring as in the July preceding, except the hay and grain used. He had not as many horses and cattle. When he sold any property he got the value of it. He got the common price for the leather sold. The fact of John Warne’s coming to Henry’s after the sheriff’s sale, to claim the property, was related to him by Henry’s wife. Witness was not there, but did not hear the conversation himself.
    Witness has heard Plenry say, that he has acted as an agent since July, 1826; has heard him tell people so in the shop when they came to deal with him. The lease from Henry Warne to deponent was executed some time last April.
    Being again examined on the part- of Matthews, saith, that if Henry Warne had moved or changed the hides that hung up in the bark house he thinks he would have known it. Witness thinks that there were four or five big hides brought from Samuel Warne’s; these hides were brought after the sheriff’s sale last spring. Samuel Warne was a young man and lived with his father until his death. Witness does not know that when Henry sold any property that he went and paid the money to the Warnes. Henry Warne keeps his accounts in a new book got about July, 1826. He believes Henry keeps his accounts in his own name. If a person brings a hide that is not a customer, once and a while he pays the money for it.
    
      Being again cross-examined, says, that he has never examined the book, in which Henry Warne keeps his accounts; does not *know whether it is kept in the [*304 name of Henry Warne or of Henry Warne as agent.
    
      Saxton,
    
    moved to bring on the argument of the rule.
    
      Vroom,
    
    objected, that the rule ought not to have been granted. How can this court have jurisdiction ? There are several executions, some in this court, some in the Court of Common Pleas. Suppose there is an application of the same kind to the Common Pleas, then there would be two courts to direct the sheriff; and they might make different ■determinations.
    But again, this rule is vague and uncertain; it specifies no reason w'hy the execution should be set aside, and I do not know how the matter can be brought before this court, in this way. It is said it is an application to set aside these executions and judgments as void; but it is a strange way to review a j udgment of another court.
    Foun, Justice. This rule comes properly before the court. It is stated in the rule, that the judgment is void. If we appropriate the money, our decision will be conclusive ; and if the Court of Common Pleas first order the appropriation, their decision would be conclusive on this court. As to the fraud, it is the practice to examine into the facts of the fraud, and if the court have any boubt, to order a feigned issue to try the question of fraud. This was the course in the case of Barrow and Bispham.
    
    
      Vroom
    
    then asked if the court would go into the argument when no reasons had been filed or state of the case prepared.
    
      Saxton
    
    said that in the case of Phillips v. Phillips there were no reasons filed.
    
      Vroom replied,
    that was a case brought up by certiorari, and this point was not raised.
   Drake, Justice. In the cases of Scudder and Coryell, decided in May term, 1829, no reasons were filed, but there were no objections on this ground. ,

Ford, Justice. It has not been the practice to file reasons, or make a state of the case, and the reasons may be, that the affidavits on which the applications are made, are taken on notice, and disclose the ground of the application. Let the argument proceed.

Saxton. There were five executions issued against Henry *305] * Warne. The two first were out of the question; and the dispute was between John Warne’s execution, No, 3, and Matthews’ execution No. 4.

Certain of the property sold by the sheriff, was property not inventoried, and not bound by John Warne’s execution ;. and a certain part óf the property was not acquired by 'the defendant until since Warne’s execution was levied, and therefore cpuld not be bound, but must go to satisfy Matthews’ execution.

Some of the articles were not levied upon by J. Warne’sexecution, and we are of course entitled to those, as our execution was a subsisting one at the time of the sale. Goods not inventoried are not bound by the execution, ■'Coxe Rep. 136, 169. There was grain in the ground which was sowed after the levy on John Warne’s execution,, and which was sold by the sheriff, and also a colt.

There is another set of articles, of the same name as the-articles levied upon by John Warne’s execution ; yet they are not the same articles, but articles subsequently obtained ;. the articles mentioned in Warne’s inventory having been sold, and these obtained since, viz. 13 calf skins, 40 cow hides, 2 setts of single harness, &c., amounting to $147.60 cts.

• The sheriff never acquired a possession of the property under John Warne’s execution ; he never saw the property ; he merely received a list of the property from the plaintiff, which the plaintiff received from the defendant, and then the plaintiff gave a stay of execution. This was not such a levy as would enable the plaintiff to maintain trover. 1 Halst. 141, 2; 12 John. Rep. 406, 7; 3 Wash. Cir. Ct. Rep. 66; 16 John. Rep. 288.

Again, this execution of John Warne’s was levied and kept on foot by collusion with his son, Henry Warne, to protect the property of Henry, and prevent Matthews from recovering the money, and it comes within the statute of frauds, 1 Bur. Rep. 174; Cowp. Rep. 434; 8 John. Rep. 452.

If a creditor permit the debtor to consume the property, this is a'circumstance of fraud, 15 John. Rep. 429, Farrington v. Smith and Sinclair ; 14 John. Sands v. Hildreth.

Warne’s execution had become dormant as to subsequent execution creditors. Where the plaintiff permits the execution to sleep *a long time, as for eighteen months, it [*306 is sufficient to postpone it. 4 Dyll. 249; 4 East. 251; 1 Ld. Ray. 252.

If an execution creditor seize goods on execution and suffer them to remain in the hands of the debtor, it is void as against a subsequent execution creditor. 15 John. Rep. 429; 2 John. 420; 3 Bacon, Fraud A; 7 Mod. 37; 1 Wils. Rep. 144; 17 John. 274.

Vroom answered. The sheriff has not got the money ; he has actually paid it over. How then can the sheriff get it back ? Although the court may have control over the money, while it is in the hands of the sheriff, yet after he has paid it over, the court cannot enable the sheriff, or order him to get it back; nor can he bring any action for it.

John Warne’s debt is admitted to be just, and the judgment good; and his first execution good. It is not pretended that they were fraudulent. There was no fraud in the inception of this transaction. It is difficult to say when it commenced. The alias fi. fa. was not sued out until after Matthews’ action was commenced.

The first objection is, “ that some articles'mentioned in the inventory to Matthew’s execution, are not contained in the inventory to Warne’s execution.” In the inventory to our execution, there is a particular levy on a number of articles, concluding with the words “ and also all other goods o.nd chattels.” If the sheriff-had merely said “I have levied upon all the goods and chattels without specifying anything, it would not have been a good levy, and the sheriff could not have sold upon it.

Second. It is said that there are articles of the same kind and nature, but that they are not identically the same levied upon. The facts here are not sufficiently made out ás to all the articles. If a property of this kind cannot be sold or is to be appropriated to the second execution, then the law as laid down by this court, that the sheriff may make the defendant his bailiff, and leave the property with him, will be productive of more mischief than benefit. Third. It is said that they levy is insufficient. The term levy, originally meant to seize or take hold of, but that is not the meaning of the term at this day. The sheriff may call upon the defendant, and if he is willing a give a fair inventory this is sufficient; and if defendant does do it, *307] there is a possession by the sheriff: There *would be more possession if the sheriff had seen the goods; and if the defendant had sold the property to a bona fide purchaser, the sheriff might maintain trover.

Again, it is said that there was here an intention to defraud, and that in such case, the junior execution must be preferred, as a general principle. This principle has been carried to very great lengths in some courts of other states, but it has never been carried so far here.

Fourth. As to the stay'of execution given, it is said this is a badge of fraud. John Warne in this did no more than is customary in the whole state of New Jersey.

Opinion of Fobx>, J.

This was a rule taken by Jeremiah Matthews to shew cause why certain moneys in the hands of the sheriff on execution, should not be appropriated to-the satisfaction of his, which was the youngest process.

John Stiers obtained a judgment in the Supreme Court for $534.71, the 13th August, 1823, against one Henry Warne, and two days afterward put a fi. fa. thereon in the hands of the sheriff, it being the oldest execution.

John Warne obtained judgment in the Supreme Court for $1,704, the 13th August, 1823, against the same Henry Warne, and put a fi. fa. thereon in the hands of the sheriff the 11th May, 1824, it being subsequent to that of Stiers.

By virtue of these executions the sheriff sold sufficient goods of the debtor to satisfy the prior execution of Stiers, so that no further notice need be taken of it in the present case. But as all the goods and chattels levied on were exhausted in satisfying this execution, and that of John Warne was still unpaid, he sued out an alias fi. fa. the 26th July, 1826, and had it levied on other goods and chattels of Henry Warne the debtor. The sheriff neither went with this execution to the premises nor made an actual seizure, but remaining at home received of the debtor a very particular inventory in writing, under the debtor’s hand, of his goods and chattels, and returned it as an inventory of what was levied on; he also received directions from the plaintiff to stay till further orders from himself, and that he, the sheriff, should not be held accountable *for the goods. [*308 The sheriff under this direction taking no security for the property, it remained in the hands of the debtor for six months, until Jeremiah Matthews obtained against him the judgment and execution hereafter mentioned. During this interval the debtor used all the property as if no execution had been levied upon it. He consumed the provisions mentioned in the inventory; gathered in and made use of the growing crops; sold the horses; fatted, killed and disposed of the cattle, sheep and hogs; the green hides in the tan yard he laid in the vats and converting them into leather, sold it and purchased new hides as usual; the leather specified in the inventory he made up into harness and sold it; he made new sets of harness as usual, and put new crops of grain in the ground.

Jeremiah Matthews obtained judgment in the Common Pleas of Hunterdon, for $1,068.42, the 8th of February, 1827, against the same Henry Warne, and the same day delivered a fi. fa. thereon to the sheriff. The inventory to this was a true copy of that which had been previously annexed to John Warne’s execution, only the sheriff added “ subject to the prior executionexcepting only a few additional articles, which he seized under the last writ and which produced at the sale hereafter mentioned, only $2.71. The direction of- Matthews to the sheriff, being to effect a sale without the least unnecessary delay, the property was- sold at vendue, the 26th March, 1827, for the total amount of $765.31. Before the happening of this sale, to wit, 1 Feb., 1827, John Warne, the plaintiff in the prior execution, and father of the defendant therein, died; but his son Samuel Warne, his administrator attended, and all the goods and •chattels were struck off to him and his brother John. These they left in the hands of Henry Warne, the debtor, who is their brother, who still uses them apparently as his own. Matthews gave notice to the sheriff, that he claimed the amount of sales on his execution, though the youngest, .and forbid the sheriff to pay it on the elder execution. The sheriff accordingly has not paid it over, but the administrator of John Warne has given him a receipt in full against the elder execution.

Though Matthews’ was an execution in the Common Pleas, he came the very next term after the sale, into this court, out of which the prior executions issued, and obtained a rule to shew cause why the proceeds of the goods and chattels should *309] not be *applied to satisfy his execution, upon the ground that the elder one was only a fraudulent cover of the defendant’s goods to delay and defeat other creditors.

First. It appears that many of the goods mentioned in the inventory had been acquired by the debtor after the return of the elder exeeution, and consequently were not returned-in the first inventory. Thus the crops growing at -the return of the elder execution in July, 1826, could not be those that were growing in February, 1827, for they were not put into the ground till after the return of the prior execution. So the green cow hides and calf skins of July, 1826, were under a process of tanning in the vats, and ■could not possibly be the hides and skins that were green in February, 1827, the latter having been purchased since the return of the elder writ. Such likewise was the case of the black colt. These articles to the amount of $183.63 were not the debtor’s property till after the levy and return of the prior execution. An execution cannot be levied after the return is out. The utmost length of time that the law allows for executing a writ, is the day whereon it is return.able. Tidd’s Pr. 385; 1 Arch. Pr. 79; 1 Salk. 71, 322. 'The sheriff has no power over any goods but such as he levied his execution upon. Wintermute v. Hankinson, 1 Hoist. 149 ; Hotchkiss v. McVicker, 12 John. 403; Slingerland v. Swart, 13 John. 255. Having seized sufficient property, in his opinion, to satisfy the debt, such levy must be the limitation of his power, or the debtor could have no use of his other goods. In case of the first seizure proving' insufficient, the creditor may sue out an alias or fi. fa. for the residue, by virtue of which the sheriff may levy on more goods, which is evidence enough of his inability to do it by virtue of his old writ after its return was out. Otherwise a fi. fa. for the residue, though well known at the common law, would be without any distinct office or object, and being an expense without utility might bo entirely abolished. But the law is clearly otherwise, and therefore those goods to the amount of $183.63, acquired by the debtor after the return of the prior execution, were levied upon only by the younger fi. fa. and must be applied exclusively to it.

But the younger execution claims priority of satisfaction ■out of the goods really seized on the elder one, upon an allegation that it was fraudulent. What particular acts are evidence of an execution *being sued out and kept on [*310 foot with a covinous intent to delay and defeat other creditors, seems not to be precisely settled; and though elder-executions have been frequently postponed on that account, the circumstance have hardly ever been precisely the same. In Bacc. Ab. Fraud, A. the law is stated to be as -follows r A man has a judgment for a just debt against A, and takes out a fi. fa. and gets the sheriff to seize the goods, but would not let him proceed further, but suffered the goods to remain in the hands of A, the debtor; B, who has also a judgment for a just debt against A, takes out a fi. fa.; and the question was whether he could seize upon the same goods; and it was held by the court that he might; for the former was a fraudulent execution.” In support of this decision he cites a number of adjudged cases to the same effect. In the case of Smalcomb v. Cross, 1 Ld. Bay, 251, an execution was delivered to the sheriff; but no warrant was taken to-levy the goods, and the court adjudged it to be a design to keep the execution in his pocket, to protect the debtor’s goods by fraud, and they postponed it for that reason to a younger execution. So in the case of Bradley v. Windham, 1 Wils. 44, the plaintiff gave an execution to the sheriff, but told him to use the defendant kindly, and not take away any of his goods, whereupon the sheriff’s bailiff only rode round the grounds and said, I seize all this corn and cattle;” and a jury found, from these facts that there was no intent to-have thefi. fa. executed, and it was postponed to a younger execution. . In Tidd’s JPr. 919, the author after collecting all the cases on this point, deduces the rule of law from, them as follows : If a creditor by a fi. fa. seize the goods of a debtor, and suffer them to remain long in the debtor’s hands, it has been determined often that this is evidence off fraud; and that the goods remain liable to any other execution.” It is useless to cite further cases in proof that an execution kept on foot without an intent to have it executed^ may be postponed to a younger on.e on common law principles. The law is so. understood in some of the most respectable-courts in our sister states. See 2 John. 422; 8 John. 452; 11 John. 112; 12 John. 406; 14 John. 500; 15 John. 428 ; 16 John. 287; 17 John. 274. The U. S. v. Conyngham, in the Circuit Court of the U. S. 4 Dal. 359. Cases decided in Pennsylvania, admit this to be the common law, though they have decided otherwise according to what was at one time supposed to be their peculiar custom. 4 Dal. 167, 208, 213.

*But perceiving the increase of many evils under [*311 this innovation they went back to the path of the common law in respect of all goods and chattels, except household furniture, which according to 4 Dal. 213, may still be protected under an elder execution for the enjoyment of the debtor, and out of humanity, it would' seem, to him, to the exclusion of all humanity for the sufferings of a more needy creditor. Considering how wear and tear, breaking, bruising, soiling and change of fashion, lessen the value of household furniture, one would suppose it the kind of goods less entitled than any other to be made an exception, and that it serves to shew the superior wisdom of the common law. So it is said that the practice in this state has been different from the common law. I will not undertake to decide in this cause what length of time an execution may be delayed without becoming evidence of fraud, or whether it depends at all on length of time; but I say there never was a practice, founded on any decision, in this state, by which, under cover of a friendly execution, a debtor could exercise full dominion, without accountability, over all the provisions of his store, the furniture of his house, the crops and stock of his farm, the capital stock of a large tannery, and of a shop for manufacturing leather into saddlery and harness; who might kill beeves, sheep and hogs, consume the way going crops of his farm, sell the horses, cattle and stock of a large farm, tannery and factory, and put the money in his pocket; while every younger execution is put to defiance. It is quite possible that goods may have been used and sold by the debtor, under cover of the older creditor’s execution, to the amount of it, and this attempt at covering the residue of the goods under that same fi. fa. is an evident fraud on the younger execution. In this way a debtor might sell the whole of his property, and if the prior execution still remained valid, it would be a bar to all other creditors forever. It would delay and defeat creditors-by securing to a debtor the enjoyment of property in opposition to all the process of courts of justice.

This court has power of deciding on both law and fact on. a rule to shew cause, though it may order a feigned issue at its discretion. This course was not applied for by either party, and in mercy to both, ought not to have been granted in so plain a case. Although the younger judgment and execution are of the Court of Common Pleas, the creditor *312] has a right to come here from whence *the prior execution issued, and where the sheriff has been ordered to bring the money. I am clearly of opinion, it cannot be holden on our process, and that it belongs to the execution of Matthews in preference to that of Warne. If, therefore, the money be in court, let it be paid in satisfaction of the Mátthews execution; and if it be not, let Matthews resort to legal means for calling it out of the hands of the sheriff.

Opinion of Drake, J.

Erorn the state of the case laid before us on this application, it not only appears that the sheriff, upon the receipt of Matthews’ fi. fa., copied the inventory before taken- upon Warne’s writ, but also, that afterwards, and before the return of the writ, he went to the house of the defendant and made a new list of the property, that included some other articles not before inventoried, and took security for the delivery of the goods, and afterwards indorsed the list of articles thus levied on, on Matthews’ execution. Whereas the levy, if it may be so called, by virtue of the writ in favor of John Warne, was made merely by receiving from him a list of the property of the defendant on which he wished the levy to be made, and the sheriff made the levy from the said list without going to see or take charge of the property, or doing any other act to perfect his levy. And it also appears, that John Warne, the plaintiff in the first execution, lived in the neighborhood of his son, the defendant, and was in habits of frequent intercourse with him ; from which, as well as the directions given by him to the sheriff, he may justly he considered as knowing and consenting to his son’s conduct with respect to the property levied on.

By mentioning these circumstances, I do not mean to intimate, that, upon the question of fraud, the case, as presented by Justice Ford, is not sufficiently strong to justify the postponement of the first execution. But concurring, as I do, with him, in the postponement, and also in doi.tg it, under all the circumstances of this ease, without a reference of the question of fraud to a jury, I have thought proper, from this last consideration, to notice these additional facts.

The Chief Justice having been once concerned as counsel, gave no opinion in this case.  