
    WM. H. MOSS, SHERIFF, VS. OLIVER MOORE AND JOHN ADAMS.
    It is not necessary that there should be an actual manual seizure and removal of property, to constitute a levy and vest title in the sheriff: it is enough that the sheriff, having the execution in his hands, within reach of the property, should, with the assent of the defendant in execution, endorse the levy on the execution. And permitting the property to remain in possession of the defendant in execution, with his consent, is Dot an abandonment of the levy, but a continuance of the officer’s possession.
    
      Before Mr. Justice Earle, at Edgefield, Fall Term, 1836.
    His Honor the presiding judge sent up the following report:
    ‘•‘Trover for a Yoke of Oxen, by Sum. Pro.
    “ The plaintiff was sheriff of the district, and had in his hands sundry executions against one Simeon Dean. One of his deputies went with these executions to the residence of the defendant, Dean, and informed him that he had come for the purpose of making a levy. Dean consented, and enumerated his personal chattels, of which the deputy made out a schedule in writing in his presence, including several negroes, the oxen in dispute, and various other articles, all of which were on the same day en^ dorsed as a levy on the executions. The defendant, Dean, acknowledged the levy and furnished the list for the purpose of being so endorsed. None of the property was removed, but it was all on the premises; and while the deputy was there, the oxen, which were at large, came up into the yard, and within fifteen paces of the deputy, so that he might have taken them if he chose ; he considered them in his possession. Dean gave his bond for the production of the negroes on the' day of sale; declined giving bond for the production of the other property, but consented that it might remain there, — he would not put it out of the way. He afterwards, however, sold, or otherwise transferred, the oxen to the defendants, Moore and Adams, who sold them for their own benefit, in Hamburgh. 'The deputy had previously informed Moore of the levy : I did not consider this material. The only question made was on the sufficiency of the levy. On this point I did not consider that actual manual seizure and removal of the property, were necessary to vest title in the sheriff. It was enough that being on- the premises, v/ith the execution in his hands, he made known to the defendant in execution his purpose of making the levy, within view of the property, and having the power of taking possession ; and that the levy was endorsed with the assent of the defendant himself. I decreed for the plaintiff.”
    The defendants appealed.
    
      Baushett, for the motion.
   Curia, per

Richardson, J.,

In making a levy on a defendant’s goods, the sheriff should make an actual seizure. But seizing a part in the name of the whole, on the premises, is a good seizure of the whole, 1 Ld. Raym. 725. Watson on Sheriffs, 124.

In the case before us, the articles were enumerated by Dean, the defendant, and endorsed on the execution as a levy. The oxen in question were within the yard, and the officer considered them within his possession. To touch them with his hand was unneccessary. It was enough that they were within his reach, subject to his control, and pointed out as the specific subject of the levy. This is the customary mode of taking possession of such chattels, upon a sale in market. It was a seizure of them according to the nature of the thing, with the understanding that the' possession passed from the defendant to the officer, which constitutes the meaning of the levy.

But it is necessary that the chattels levied on should continue in the possession of the officer, either by himself, or some other person for him» 8 Prince, 95. 1 Bing. 71. 7 J. B. Moore, 368. Watson, 124.

Did the oxen so continue 1 is the question. For if the officer abandoned them, the levy was imperfect — as in Blade vs. Arundale, in Maule and Selwyn, 713 — where the officer seized a table, but left no one in possession for him, the levy was considered ineffectual; upon the land-lord seizing the table for rent.

But in the case before us, the defendant consented that the oxen might remain on his premises, and promised that he would not dispose of them'. I think this amounted to a contract, that be would keep them for the officer. At all events, it cannot be an abandonment by the officer. At least, as between the owner and the officer, it was a continuation of the officer’s possession. It could not have been a violation of the owner’s rights, if the officer should afterwards take possession in person. It is to be observed, that in this case theie is no conflict of authorities, for the possession, as in Blade’s case, between a levy and a distress for rent.

In this posture of the possession, the former owner, Dean, sold the oxen to Adams arid Moore; Moore knowing that the levy had been made ; and the sheriff lost the oxen.

It appears to my understanding, that the ' possession of the sheriff was continued by the hands of Dean, the former owner; as much so as that of the other chattels, for which Dean gave bond to the officer; perhaps more so. And the defendants having notice of the levy, could not have been deceived by Dean; and therefore, rendered themselves liable to the sheriff, for violating his right, by virtue of the levy.

The motion is dismissed.

Gantt, Evans, Earle, and Butler, JJ.,- concurred.-  