The Chief Justice, (J. M. Clayton,) charged the jury. Action of assumpsit for goods sold by Peter R. Stille to the defendant amounting to $ 119 19. It is not disputed that the purchase was made of Stille, but it is contended that he was but an agent of John H. Bostick, to whom the goods in fact belonged. Samuel G. Wright & Co. having obtained a judgment against Bostick, sued out a fieri facias attachment, and summoned the defendant as garnishee in respect of these goods.

He pleaded nulla bona; entered into a reference with the attaching creditor; had a report and' judgment against him; and paid the amount in pursuance of such judgment. It has been contended, that because this reference was voluntary on the part of Layton, he is not protected by the award and judgment. We do not think so. We think the result of the reference, there being no fraud or collusion shown, is as binding on the garnishee as a verdict, and equally a protection to him. No such fraud or collusion is here pretended. But another thing is essentia] to the protection of Layton.

It must appear to the jury that, at the time of the sale of these goods, they were the property of Bostick and not of Stille; for if they were the property of Stille, then even a recovery in the garnishment on the judgment of Wright & Co., against Bostick, would not protect the defendant. If the property was Bostick’s, Stille cannot maintain this action for the price of it, after Bostick’s creditor has attached the defendant as his garnishee, obtained judgment and received payment.

For, though a general agent may sue in his own name,, where he has an interest in the goods, a mere agent connot recover after the property is attached as that of his principal. A sale is always a warranty of title: and if after a sale the property is shown in another, the vendor cannot recover. True, possession is always prima facie evidence of title; but it may be rebutted. Rodney, for plaintiff Brinkloe and Cullen, for defendant. Verdict for defendant