
    Burnell against Johnson.
    ALBANY,
    August, 1812.
    A judgment was confessed Uhout^priJ favoury0f "ln b.efore a j'ustice, and exe* cution taken atciy/byronl ]¡evnere¿ nd0de" £™0stabIe’and levy madefc. fiable'16 c°n' household the goods, &c. of goods wereafb^confen^ot ,in mass by theconstaMe. without md^tcr'thf f^pfred '" t,ie rmrchas pp and the goods the¡UseL¡m, of J1’and P-gave a receipt t0 A. to account for them.
    
    While the goods were thus in possession of B. they were taken mon. against B. at the suit of D.
    In an action of trover, brought by C. it was held that the transaction tween Á., b*. fraudulent, had no property in the goods, which were hable to the secondexecution-."
    IN ERROR, on certiorari, from a justice’s court. Johnson brought an action of trover against Burnell, before the justice, for certain articles of household furniture. It was proved, at the trial, that the goods claimed by the plaintiff had been sold on two exe- ° vi cutions, issued by a justice’s court, in favour of Jesse Killburne against Jesse Townsend, on judgments confessed by him, without process, before the justice, on the 28th of March, 1811, and the executions were, by consent of the parties, issued immediately. On the 3d of April, and before any levy was made by the constable, Townsend delivered to the constable a receipt for the property in question, signed by Johnson. The constable, without any actual levy, advertised the property for sale on the execution, and, by the consent of Killburne, adjourned the sale, and again advertised the property, and again, by consent, adjourned and advertised the sale for the 2d of July. One part of the property, „ . , , , . , „ , , . V r j» consistmg ot painters colours, tools, &c. was sold m one lot, and the household furniture, without being seen by the constable, was sold together in another lot, and the whole was purchased by Killburne for 25 dollars. The sale was made with the consent Townsend. The executions, which had expired, had not been renewed. The property was left in the possession of Townsend, and, afterwards, on the 12lb of July, Johnson gave Killburne a . . . receipt for the property, engaging to return it to him when called for, or to pay him for it. While the property was thus in the possession of Townsend, it was taken by Burnell, the defendant below, another constable, on the 15th of July, by virtue of an exesution in favour of one. Hurd against Townsend, issued on a judgment obtained the 22d of June. The jury found a verdict for Johnson, the plaintiff below, for 11 dollars and 75 cents, on which the justice gave judgment.
   Per Curiam.

Here are too many circumstances of fraud attending Johnson’s claim to the goods, to permit the recovery to be supported. It was a verdict against the conclusions of law. The judgments from Townsend to Killburne were confessed without process, and without any consideration appearing, and, by consent, execution was immediately taken out. Johnson then immediately appears in the transaction, and receipts to Townsend for the goods, but they appear still to be in Townsend’s possession. Why Johnson gave a receipt for the goods is not shown. After several advertisements and adjournments, the goods are sold by consent of Townsend, and while in his possession, and without ever being seen by the constable, they are bought by Killbiirnes and Johnson again gave al receipt for them, and left them in possession of Townsend, until they were seized and sold by Burnell to satisfy the judgment of another creditor. From these facts, there does not appear to be any colour or pretence of property, or possession, in Johnson, and, consequently, he had no right of action.

Judgment reversed.  