There is no importance to be attached to the previous history of this case.

The first appeal did not decide, or attempt to decide, anything beyond the point that a tort like the one described in the complaint was assignable. The case was then tried, and this appeal brings up that trial only. Upon this trial it did appear that the defendants had parted with their title before the levy, and this was an assumed fact in the judge's charge.

The recovery was solely had on the fact that when a sheriff levies on property and there is a bond of indemnity given by the plaintiff to the sheriff, he is bound to sell at all hazards. The general term decision was based upon the right of a sheriff to refuse to sell, if he is willing to prove affirmatively that the judgment debtors had no title to sell.

Motion denied, with ten dollars costs.

Pratt, J., concurs.