
    *Bullitt’s Executors v. Winstons.
    Argued Thursday, March 22, 1810.
    1. Executions — Levy—What Constitutes. A writ of fieri facias may be levied, without touching, or removing, the property: provided it be in the immediate power of the Sheriff, and admitted by ' him to have been taken to satisfy the debt.
    2. Same — Same—Same.—The Sheriffs permitting the property to remain in the possession of a third person, or of the defendant, under a verbal engagement to produce it on the day of the sale, does not prevent the fi. fa. from having been levied in contemplation of law; the Sheriff being responsible to the plaintiff, in such case, if the property be not produced.
    
      3. Same — Same—Proof Thereof — Parol Evidence.— Parol evidence is admissible to prove that a fi. fa. was levied, though uo return was made upon it.
    
      4. Same — Return—Amendment.—A Sheriff may be permitted, by order of Court, to make a return upon an execution, or to amend it, according to the truth of the case, at any time after the return day.
    5. Same — Postponement of Sale — Release of Sureties. —A plaintiff, by directing' the Sheriff to put off the sale of property taken in execution, to a day after the return day, and to suffer it to remain in the possession of the principal defendant, or his securities, releases the securities altogether from that or any subsequent execution; such direction being given ■without their concurrence.
    ■6. Same — Same—Same.—In such case, the plaintiff’s adding to the direction the words “holding the property subject to the said execution,” cannot prevent the release from operating.
    7. Same — Order Quashing — Appeal—Revivor.—An appeal from, or supersedeas to, an order quashing an execution against two defendants, need not, if one of them die, be revived against his representative, but should be proceeded on as to the other only.
    The principal questions involved in this case were, fitst, what acts amount to a legal levying of a writ of fieri facias; and, secondly, what is the effect of the plaintiff’s directing the Sheriff to postpone the sale of property taken in execution, and suffer it to remain in possession of the defendants, until a day subsequent to the return day; as against securities; such arrangement having taken place by an agreement between the principal debtor and the plaintiff, without their concurrence?
    A motion was made, to the District Court of common law, holden at Richmond, on behalf of Samuel Jordan Winston and Edward Winston, to quash a writ of fieri facias issued the 21st of February, 1804, in favour of Thomas Harrison, and Thomas James Bullitt, executors of Cuthbert Bullitt, against John Carter Eittlepage, and the said Winstons; on the ground, (set forth in the notice,) “that a former writ of fieri facias for the same debt, had been regularly issued and levied on the goods and chattels of the subscribers, who were only securities for the said debt, and the said property, ‘then taken, released 270 and discharged *by the aforesaid Thomas Harrison, under a compromise with the said John Carter Eittlepage; to which compromise they were not parties, or in any manner consulted with respect to the same.”
    The evidence introduced on the hearing of this motion, and spread upon the record by a bill of exceptions, consisted of two writs of fieri facias on behalf of the said executors ; one of which was against John C. Littlepage, Thomas Starke and the said Winston; and the other against the same persons, except Thomas Starke; both bearing date the 21st of January, 1800, and returnable the 1st of April following, but with no returns endorsed; also a letter from the said Thomas Harrison to the Sheriff of Hanover, dated March 12th, 1800, in which he directed him “to put off the sale of the property, taken by the said executions, until the first day of August, holding the property subject to the said executions, and to suffer it to remain in the possession of Mr. Eittlepage, or his securities;” and other testimony proving that William Clarke was the deputy of Thomas Tinsley, Sheriff of Hanover County; that the said writs came to his hands as deputy aforesaid, at the time endorsed thereon; that, prior to the 12th day of March, 1800, he went to the house of Edward Winston for the purpose of levying the same on his property; that he then and there saw certain slaves belonging to the said Edward Winston, and declared that he “should levy” the said writs on them; that ‘ !no opposition was made” to the levying the said executions; that thereupon Peter Crutch-field, and the said Edward Winston, orally undertook to the said Clarke, to see that the said slaves should be forthcoming at the day of sale, and the said Clarke did not remove them, nor touch them, but assented to their remaining in the possession of Edward Winston, having taken a list of their names; that he next proceeded to the house of David Timberlake, who was in possession of a slave belonging to the said S. Jordan Winston, under hire until the end of the year 1800, and informed the said Timberlake that it was his 271 purpose to “levy the said writs upon the said slave, but did not remove him, nor touch him, (the said Timber-lake having promised that he should be forthcoming at the day of sale,) but consented that he should remain in the said Timberlake’s hands till then; that the said Clarke appointed the 20th day of March, 1800, for the sale of the said slaves, and advertised them (without naming them) as having been seized by virtue of the said executions; that, on the said 20th day of March, Timberlake brought the slave in his possession to the place of sale; but Clarke (having received the aforesaid letter from Thomas Harrison) informed him he might carry the slave back; which he accordingly did; that, at the time of these transactions, S. Jordan Winston was absent from the County, and knew nothing of what had passed, until after his return. The said Clarke deposed “that he did believe, and yet believes, that the said letter was delivered to him by a certain T. Starke, but had been told by Edward Winston that it was delivered by himself; that he gave notice, on the said day, to Timber-lake and Edward Winston, that he should attend at the same place on the first day of August, 1800, in order to sell the slaves according to the terms of the said letter; and did attend accordingly, but the slaves were not produced; that the execution, for the purpose of quashing which this motion was made, was levied upon the slaves aforesaid of Edward Winston only; that no property of Eittlepage was seized under the former executions, and it was generally understood and believed that all his personal estate was so encumbered and covered by deed that those executions could not be levied with safety upon any part thereof; that Harrison’s letter was obtained at the instance of Eittlepage, on condition, that he would pay to the said Harrison the sum of 4001. which was done, and was sufficient to discharge the aforesaid execution against Eittlepage, Starke, &c.; (which, according to the endorsement upon it, had first come to the Sheriff's hands;) that S. Jordan 272 Winston did not make to *the said Clarke any objection to the said letter, while the said executions were in his hands; but it was not proved that he assented to the terms thereof, or that he ever was acquainted .with the indulgence granted thereby, until after the execution now in question was issued; that the said Clarke, as Deputy Sheriff, received his full commissions, on the said executions issued in the year 1800, from John C. Littlepage and the said Starke; that the execution which issued the 21st of January, 1800, (on the same judgment on which the present execution is founded,) had an erasure on the back thereof;” and the said Clarke further deposed “that he believed that the names of the slaves were put on the back of the execution, but that the writing is now erased, except the word “Peggy” which he believed was the name of one of the slaves advertised by him, and which word is in his hand-writing. ” He also deposed that he did not know who made the said erasure.
    Upon this evidence, the Court rendered judgment, that the said execution be quashed; “it appearing to the Court that the former execution had been levied on property which had been released by consent of the plaintiff, although the said execution was returned without any return endorsed thereon.” And it was further ordered, “that William Clarke be permitted to make a return upon the execution levied as aforesaid, according to the truth of the case; to which judgment Bullitt’s executors excepted; and afterwards obtained a writ of supersedeas, which abated, as to Edward Winston, by his death.  273 *Botts, for the plaintiffs in error. The first executions were not levied. I admit that seizing a part, in the name of the whole, is su£Scient: but then there must be a seizure,  Where a Sheriff seizes property not subject to the execution, as where he seizes the property of B. upon an execution against A. he is a trespasser. But, in this case, he could not have been charged as seizing vi et armis. In point of fact there was no seizure. Mere words could not make it. The bargain that the slaves should be considered as taken (when they were not) could not make it an actual seizure; neither could the plaintiffs (who were not parties to this bargain) be bound by it.
    Indeed, the bargain was illegal; for the Sheriff was not authorized to leave the property , in the defendants’ possession without taking a forthcoming bond, 
    
    The letter from Harrison fitted a case which did not exist; appearing to have been written under a mistaken impression that the fi. fa. had been levied. No precedent shews that a mere postponement by the plaintiff of a sale under execution will discharge the execution. The Sheriff may obtain authority from the Court to postpone his return, and, after the return day, may sell. Withdrawing an execution from the hands of the Sheriff, before it is levied, does not discharge it.
    The Sheriff’s receiving commissions was only prima facie evidence that the execution was levied; which evidence was rebutted by positive proof that it was not.
    The plaintiff’s letter did not authorize the Sheriff’s discharging negroes which were not in his custody. In feet, he could not discharge them; for they were not produced. 
    
    Nicholas, (Attorney-General,) contra.
    As to the first point; the negroes are proved to have been in the sight of the Sheriff: no-opposition was made to his levying; and their names were set down on the back of the fi. fa. All the law can require is to-get legal possession of the property; 274 *which he obtained in this case. Is there any book which says the Sheriff must lay hands on the property? If it was, the intention of the parties that he should be considered in possession, and the property was left with the defendant only for his accommodation, the Court ought to hold the execution levied. The plaintiff’s letter too shews that he considered it as levied. Besides, the Sheriff relied on Crutchfield’s engagement to produce the negroes at the day of sale, and made use of him as his agent to keep them in the mean time.
    The cases cited by Mr. Botts are not against us. 1 Ld. Raym. 725, is in our favour. 1 Salk. 79, relates to the service of a ca. sa., and has, therefore, no analogy to this case; for, upon a ca. sa., actual personal restraint is necessary, from the nature of the thing. But I doubt, even in that case, whether it is necessary to touch the body; for if the Sheriff shews his writ, and the defendant says ‘ !I am your prisoner,” and goes to gaol, surely it is sufficient,  In the case in Taylor’s Rep. 132, it is expressly stated that the Sheriff did not take the negroes into possession: what circumstances would have constituted' possession are not stated; so that what amounts to a legal levying is not there decided. Some analogy exists between this question and that relative to what constitutes larceny; concerning which we are told, in 2 East’s Crown Law, p. 544, that any act amounting by reasonable intendment to taking with felonious intent is sufficient to make it larceny.
    Where an execution is issued and proceeded upon, it must be returned, and a subsequent execution must be founded upon it; for an execution is an entire thing, and cannot be superseded without a return.  If, therefore, this execution was not levied, no new one could issue, the first having not been returned.
    2. As to the second point; the case of Nisbet v. Smith, 2 Bro. Ch. Rep. 581, (cited 3 Call, 71, Croughton v. Duval,) is conclusive authority, that a creditor, by giving farther time to the debtor, so as to change the nature of the contract, discharges his securities.
    *Wickham, on the same side.
    A statement in a bill of exceptions is not like a special verdict, in which the facts are found; but only sets forth the evidence of facts. This bill of exceptions contains enough to shew that the first execution was levied. The plaintiff is bound by the acts of the Sheriff; for he has his remedy over against him. Whatever, therefore, the Sheriff considers as equivalent to service of the execution, the plaintiff is bound to take as such ; and even if he acted improperly, the execution was not the less levied. But, in fact, the Sheriff acted with propriety: he had a right to trust the property to the defendant, or any body else; for he remained himself responsible to the plaintiff. According to Mr. Botts, a Sheriff cannot take negroes without putting them in gaol. But the practice of the country is very properly otherwise; for a contrary practice would be the excess of cruelty. As to S. J. Winston’s property, it was produced, on the day of sale, by the hiree. Whether he was obliged to do this, or not, is an important question, but not necessary to be settled in this case; for volenti non fit injuria.
    Mr. Botts’s argument would shew that an execution cannot be levied without removing the property: but there are many things which cannot be conveniently removed. For example; is the Sheriff to take away a stack of oats or wheat? May he not sell such articles on the premises? So the sale of furniture may be at the house of the debtor. In all such cases, if the Sheriff chooses to run the risk of leaving the property, there is nothing to prevent him; and his remedy is by action of trover, if he cannot otherwise get possession to make the sale. If a negro escapes, he may take him again, if he can; if not, he must bring trover.
    I admit, postponement by the plaintiff does not discharge the execution; neither ought it to discharge it. True it is, the course of a prudent creditor, when he is willing to grant the defendant indulgence, generally is to tell the Sheriff he .will have nothing to <fo with any arrangement between the defendant and him, but will 276 not call on him for *the money until a certain day. But the proposition I contend for is, that, by postponing the execution, at the instance of the principal debtor, the plaintiff, (though he does not thereby discharge it,) in equity exonerates the securities.
    Randolph, in reply.
    The last execution which the Court directed to be quashed does not appear in the record; but must be presumed to have been in due form. Both the first executions are directed “to the Sheriff of — — County,” and are endorsed “William Clarke, Deputy Sheriff,” without saying of what County. It does not appear, therefore, that they were in the hands of any legal Sheriff or authority. Of course, there was nothing to prevent the subsequent execution from lawfully issuing.
    If this point be against me, I still contend the first executions were not levied. The levying is not proved to have been expressly made; for Clarke himself does not say this; but only that he avowed an intention to levy; saying not that he did, but that he would. Neither was it such a levying as operates impliedly in the eye of the law. What means levying, executing and serving, which are synonymous terms? Some act which takes the property into the custody of the law; some act, the effect of which, superadded to the lien by delivery to the Sheriff, insures the money to be ready on the return, or sanctions the property from rescous. Without one of these two circumstances, there can be no levying. 
    
    The cases in which the touch may be dispensed with in part, are, 1. Where the property taken consists of one homogeneous aggregate; as a heap of wheat, a library of books, and a flock of sheep; or, 2. Of dissimilar constituents of one integer; as furniture in a house; different crops, or other property in the same barn; or, perhaps, even horses, &c. in the same stable, or stacks in the same field. I admit, also, that no touch is necessary, where property is brought into the presence of the Sheriff, so that, from proximity, he may be said, according to the usual course of 277 things, .to *have it in his immediate power; as slaves brought into a room, or within a short distance, as usage is; not precisely measured indeed, but according to ordinary practice; or slaves going home with the Sheriff, or on their way to gaol. But this case comes within none of these classes.
    Let it be tested, by inquiring, if a person had driven off these negroes, could he have been charged with a rescous? He might have defended himself by saying there was no unequivocal act or declaration shewing that the Sheriff had taken them. Their being merely in his sight was nothing. Would the Sheriff have run the risk of being prosecuted for a false return, upon such a levying?
    Crutchfield was not the agent, or bailee, of the Sheriff; for the Sheriff had not the slaves in possession, and could not therefore deliver them to him. The Sheriff’s receiving commissions, (being an act in pais,) does not prove that he levied the execution, when he would not return it executed. He must have received them after the failure to deliver the slaves, and, probably, the money was paid by the defendants to quiet him. His advertising the property is also no proof of levying; for he did so, under the expectation that Crutch-field and Timberlake would produce the slaves according to promise.
    The plaintiff was not bound by the act of the Sheriff, the fi. fa. not having been returned levied; but had his choice, either to bring his action against him, or to consider the first fi. fa. not levied, and to sue out another.
    It is contended that Jordan Winston’s slave was actually levied upon. But, before the day of sale, the Sheriff mentioned only a “purpose;” and, on the day, there was no indication of an actual levying; for the Sheriff contented himself with telling Timberlake to take him home again.
    2. The property was not released by the plaintiffs. The terms of Harrison’s letter (which is relied upon by the defendants themselves) prove this; a condition being expressed, of “holding the property subject^ to the said executions.” According to its* own language, the practice of the 278 ^country, and the law of the case, that letter ought not to be considered as a release.
    The Court also erred in permitting the Sheriff to amend his return. It was unnecessary, because it furnished no additional evidence; and, as a return, insufficient; being long after the return-day.
    One more remark is important. Even if the first execution was levied, it was defeated by a fraudulent compact to the injury of the plaintiffs; and therefore might be renewed. If subtle law, and metaphysical possession, be out of the way, the plain equity of the case is in our favour.
    May 16, 1810.
    
      
      Executions. — See generally, monographic note on “Executions” appended to Paine v. Tutwiler, 27 Gratt. 440.
    
    
      
      Same — Levy—What Constitutes. — To constitute an effectual levy, it is not essential that the officer should make an actual seizure; if he have the goods in his power and view, this may suffice. Dorrier v. Masters, 83 Va. 476, 2 S. E. Rep. 927, quoting from % Tucker’s Com. 367, and citing the principal case as so holding. To the same effect, see Poling v. Flanagan, 41 W. Va. 198, 23 S. E. Rep. 685, where the principal case is cited.
    
    
      
       Same — Return—Amendment.—A court from which process is issued may permit the sheriff’s return thereon to be amended at any time, even though a suit or motion founded on the original return be then pending, and even though the proposed amendment be inconsistent with the original return, and take away the foundation of the suit or motion. Stone v. Wilson, 10 Gratt. 533, citing Wardsworth v. Miller, 4 Gratt. 99, Smith v. Triplett, 4 Leigh 590, Bullitt v. Winstons, 1 Munf. 269, and Rucker v. Harrison, 6 Munf. 181. To the same effect, the principal case is cited in Goolsby v. St. John, 25 Gratt. 160; Walker v. Com., 18 Gratt. 49, 51; Reinhard v. Baker, 13 W. Va. 809.
      For further cases on this point, see foot-note to Walker v. Com., 18 Gratt. 14; foot-note to Wardsworth v. Miller, 4 Gratt. 99; foot-note to Smith v. Triplett, 4 Leigh 590; monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
    
      
       Same — Postponement ot Sale — Restoration of Property to Debtor — Effect.—The mere postponement of a sale under an execution does not affect the plaintiff’s rights, unless there be collusion. But if he directs the sheriff not to sell, but to leave the property in the debtor’s possession, the execution is fraudulent and any other creditor may take the property in execution. The difference is obvious. So long as the goods are in the hands of the sheriff, they are in the custody of the law. But when the plaintiff directs a return of them, he takes them out of the custody of the law; and, from that moment, they are no longer bound by the execution. As maintaining these principles, the principal case is cited in Governor for Fisher v. Vanmeter, 9 Leigh 37, 29. See also, foot-note to Baird v. Rice, 1 Call 18.
    
    
      
       Same — Levy—Release Thereof. — Effect on Surety.— When an execution is levied on the property of a principal, if the Creditor interferes and releases it, he thereby discharges the surety. Garland v. Lynch, 1 Rob. 562, citing the principal case. To the same effect the principal case was cited in McKenzie v. Wiley, 27 W. Va. 661. But the surety is discharged only to the value of the property on which the execution was levied. McKenzie v. Wiley, 27 W. Va. 661. See also, foot-note to Baird v. Rice, 1 Call 18; foot-note to Alcock v. Hill, 4 Leigh 622.
      To the point that mere indulgence granted to the principal debtor will not release the surety, the principal case was cited in Knight v. Charter, 22 W. Va. 428. See also, on this point, foot-note to Walker v. Com., 18 Gratt. 13; foot-note to Hill v. Bull, Gilm. 149,
      Principal and Surety — Relief of Surety — Motion.—To the point that a surety may have relief by motion, when he is no longer liable for the debt of his principal, Bullitt v. Winstons, 1 Munf. 269, was cited in Steele v. Boyd, 6 Leigh 554, 558.
    
    
      
      Note. In tills case, a scire facias for revivor was issued “to the Sheriff of-County.” The return was “Executed, Henry Wills, Sheriff;” without mentioning- of what Connty. The Court was of opinion that this return was not sufficient; but Botts observing that a revivor against the representative of Edward Winston was unnecessary and irregular; the cause was argued, with assent of the Court, as to Samuel Jordan Winston only, and was permitted to abate as to Edward Winston. ***See 1 Salk. 319, Pennoir v. Brace. — Note in Original Edition.
    
    
      
       1 Lord Raym. 725, Cole v. Davies.
    
    
      
       1 Salk. 79, Genner v. Sparkes Taylor’s N. Carolina Rep. 132.
    
    
      
       1 Rev. Code, p. 298, s. 13.
      
    
    
      
       6 Bac. Abr. 176; (Gwill. edit.) citing Roll. Abr. 893; 4 T. R. 640, 651; 1 Show. 174.
    
    
      
       Horner v. Battyn, Bull. N. P. 62; Blatch v. Archer, Cowp. 65.
    
    
      
       2 Bac. Abr. 717, 719, (Gwill. edit.)
    
    
      
       1 Salk. 322, Clerk v. Withers; Ld. Raym. 1072, S. C.; 2 Saund. 343, Mildmay v. Smith.
    
    
      
       Taylor’s N. C. Rep. 132, 147.
    
   The Judges delivered their opinions.

JUDGE TUCKER.

The first question which presents itself on the bill of exceptions filed in this case, is, whether the two writs of fieri facias which issued from the District Court of Richmond the 21st day of January, 1800, at the suit of Bullitt’s executors, one of which was against the goods of John Carter Littlepage, Thomas Starke, Samuel Jordan Winston, and Edward Winston ; and the other against J. C. Little-page, S. J. Winston, and E. Winston, only, and which were proved to have come to the hands of William Clarke, as Deputy Sheriff for Thomas Tinsley, Sheriff of Hanover County, to execute, were actually levied, or not, by the said William Clarke. And I am of opinion, that the evidence is sufficient to prove that they were. [Here Judge Tucker recited the evidence relative to the levying; in substance as above stated.]

The simple question upon this evidence is, whether it be sufficient to prove that the execution was levied? When the Sheriff had declared his intention to levy the execution on the slaves in his view; when no opposition was made to his levying the execution on those slaves; (whether near, or at a distance does not appear, and therefore I shall presume they were in his presence;) when he had taken a list of their names, (as the law requires in such cases,) 279 which he probably *must have been informed of by their master Edward Winston, then present; and when Winston and Peter Crutchfield (whose undertaking is out of the question, at present, as both executions were endorsed, “no security to be taken”) had undertaken to produce the slaves on the day of sale; can there be a doubt that it was unnecessary to touch them, in order to give effect to the levy? The Sheriff acted at his own peril, in leaving the slaves behind him, it is true; but there is nothing in law, nor in reason, to prohibit him from doing so, if, from his knowledge of the party in whose possession they are taken, he has sufficient confidence to intrust him with the care of them till the day of sale. The inconvenience, and, in many instances, the cruelty, of a contrary practice need not be dilated upon. The same may be said of the slave in the possession of Timberlake; as he did not oppose the levying of the execution, notwithstanding his possession of the slave, and his interest therein to the end of the year, no other person had a right to dispute it. He produced the slave on the day of sale, which is an additional proof that he admitted that the execution had been duly levied. We are not here to inquire how the Sheriff ought to have proceeded after this; suffice it to say, that, it being uncertain whether the property so taken (for neither the number, nor the names of the slaves now appear, although the Sheriff deposed that he believes the names of the slaves were put on the back of the execution, but that the writing is now erased, except the name of one) was or was not sufficient to satisfy the amount of the executions; and it appearing from Clarke’s own evidence that he did not levy them on any property belonging to Littlepage, and it being uncertain (as not being mentioned) whether any property of Starke, the fourth defendant named in one of the executions, was taken, or not, the presumption, until the contrary be shewn, is, that the slaves of Edward Winston, on which the execution was levied, together with that of Jordan Winston, on which it was levied, were sufficient to satisfy both those executions.

The *Court, I think, decided rightly in ordering, that William Clarke, a former Deputy Sheriff of Hanover, be permitted to make a return upon those executions, according to the truth of the case: and, until the return was so made; or if, upon that return, it should appear that the propertj' taken was sufficient to satisfy those executions, I think the latter execution ought to have been superseded, if still in the hands of the Sheriff, or quashed, if returned to the office. As we have no copy of that execution in the record, I cannot give a more precise opinion upon the point. In the case of Eckhols v. Graham, this Court is reported to have decided that, by taking out a second execution, the plaintiff had waived the benefit of the first, and discharged the lien upon the slaves taken upon it. But I think that case does not apply to the present; for, until a return made upon those executions, it does not legally appear whether the property taken hath been sold, dr whether it was sufficient to satisfy the whole, or only a part of those executions.

The second question is, whether the letter from Thomas Harrison, one of Bullitt’s executors, directed to the Sheriff of Hanover, dated March 12, 1800, wherein he desires to put off the sale of the property taken in execution to the 1st day of A ugust, holding the property subject to the said executions, and to suffer it to remain in the hands of Eittlepage or his securities, was a release of the property so taken as to Jordan Winston, who is expressly stated to have known nothing of the transaction, or to have acquiesced in the indulgence granted by Harrison, until after the third execution was issued. Now, certainly, from the very terms of the letter, it appears that Harrison never had any intention to release the property; for he directs the Sheriff to hold the property subject to the executions. The Sheriff, therefore, was not authorized to do any thing more than to postpone the sale, leaving the slaves, where they were, in the possession of Littlepage or his secu-„ rities. But how was this to be done? Not by the Sheriff, virtute officii, because the endorsement on the executions pro-281 • hibited him, *as Sheriff, from taking1 any security. Having levied the executions, he was bound at his own peril, that the slaves should be sold: he encountered that peril when he left the slaves in the hands of Edward Winston and Timber-lake, on their promise to produce them on the day of sale. When Timberlake brought Jordan Winston’s slave, according to his promise, to be sold, he had fulfilled his promise: the slave was constructively, at least, in the Sheriff’s possession ; and he was bound for his safe keeping until sold.

The person for whose benefit the executions issued, authorized him to suffer the slave to remain in the hands of Eittlepage, or his securities; yet bids him hold them subject to the executions. Under the circumstances of this case he could not do this, as Sheriff. If the Sheriff, in pursuance of this order, suffered the slaves to return with the privity or consent of Jordan Winston, he acted in this instance as the plaintiff’s private agent, and not as an officer. The case is still stronger if he did so'without the privity or consent of Jordan Winston. From that moment the slave was no longer in the custody of the Sheriff, as an officer, nor could he be retaken bv him at any time, as he might have been if he had not been produced to be sold; for Timberlake was his bailee, until the day of sale, and he might have seized the slave, and put him in prison, or delivered him to the safe keeping of any other person, until that time. But in permitting the slave to return with Timberlake, he acted only as the private agent of Harrison. It would have been otherwise if the sale had been necessarily put off, for want of buyers; for in that case, the slave would still have remained in his. custody. But here the case was different: the plaintiff grants an indulgence to one defendant, at the possible loss, or injury of another.

Suppose the slave had died, or had run away, before the 1st of August: if the postponement was without his owner’s consent or privity, ought he to be chargeable a second time for the value of what the 282 slave would have sold for if *the indulgence had not been given to the principal defendants? It seems then to me, that this indulgence granted to Carter Eittlepage, the principal debtor, without the consent or privity of Jordan Winston, (for" I mean to say nothing as to the other defendants,) amounted toa release as to him; the property once taken upon the execution being, by the act and consent of the plaintiff, put out of the custody of law, in which it had before been.

But, if it be otherwise, a third question still remains. Is there not evidence upon this record, sufficient in law, to shew that these executions have been fully discharged. . Clarke, the Sheriff, who levied these executions, swears, “That he as Deputy Sheriff received his full commission on the said executions issued in the year 1800, from 'J. C. Eittlepage, and the said Starke. ” Now the fee bill allows to the Sheriff for proceeding to sell on any execution on behalf of the Commonwealth, or of any individual, if the property be actually sold, or the debt paid, the commission of five per cent., &c. and no other commission, fee, or reward, shall be allowed upon any execution, except for the expense of removing and keeping the property taken, The Sheriff being thus prohibited from receiving any commission unless the property be actually sold, or the debt paid, and having acknowledged that he has received his full commissions on both executions, the conclusion in law is, that they have been fully satisfied. And of this conclusion the defendant Jordan Winston, for the reasons before mentioned, is entitled to avail himself, as he hath done in the present instance. I am therefore of opinion, that the judgment of the District Court, so far as relates to him, ought to be affirmed.

As to the blank in the execution, for the name of the County; that may be amended by the Sheriff, pursuant to the order of the Court. His testimony sufficiently proves that it came to his hands as Deputy Sheriff of Hanover, and he may be compelled to amend his return accordingly.

* JUDGE ROANE.

I shall not waste time to prove, that the facts stated in the bill of exceptions amounted to a complete levying of the execution of January 21st, 1800, and was so considered by all parties. Being so levied, the Sheriff took the personal engagement of the parties, to produce the property on the day appointed for the sale, viz. 20th March, 1800; on which day one of the slaves was produced ; and the others were not produced, probably from a knowledge existing in the neighbourhood, that the sale of the same had been postponed, by the consent of the plaintiffs. The letter, under which the sale on that day was dispensed with, was written without the privity or consent of the appellees; and the releasement of the property purported thereby, was founded on a consideration flowing from the principal debtor, Dittlepage, to the plaintiffs. That letter either operated a complete discharge of the property from the execution, or, at least, by holding the property still subject thereto, precluded any further execution until it was finally disposed of. Considered in either point of view, the truth of the case ought to have been returned, at the day, by the Sheriff; which, had it been done, would have prevented the Clerk from issuing a new execution. The most favourable point of view for the appellants is, to consider the first execution as not discharged, but as continuing : in that view, there was no necessity for issuing the second. The law does not permit our citizens to be harassed by repeated and unnecessary executions.

The case of Baird v. Rice is a complete a.uthority for the defendants, both as to the propriety of suffering a Sheriff to amend his return according to the truth of the case, and as to the effect (in favour of the security) of a restoration of the property by the Sheriff, to the defendant, with the consent of the plaintiff. Indeed,' it is a complete authority in the present case, in which it is unimportant to the success of the appellees, whether the first execution be considered as discharged, or continuing: it is the rather an authority, because in that case there was some evidence 284 that *the security, Rice, acquiesced in the arrangement for the discharge of the property, whereas, nothing of the kind is shewn in the case before us.

I think this a very plain case, and that the judgment of the District Court quashing the second execution, should be affirmed.

JUDGE DEEMING

concurred.

The judgment was therefore unanimously affirmed. 
      
       1 Call, 494.
     
      
       1 Rev. Code, c. 95, s. 8.
     
      
       Ibid. c. 151, s. 33, accordant.
     
      
       1 Call, 18.
     
      
      Note. Some doubts, at first, existed, in this case, whether, as the second execution was not levied on the property of Samuel Jordan Winston, (the only appellee before the Court,) It was competent for him to move to quash It. 15ut it was resolved by the Court, that he had such an interest in the question as enabled him to move to quash the execution.— Note in Original JMition.
     