
    
      Farrar & Hays vs. The Adm'rs. of William Wingate.
    
    XJpon plaintiff’s fi. fa. was indorsed a stay of “sales only,” and the plaintiff’s attorney informed the sheriff that the stay was intended to apply only to the sale, and instructed him to levy immediately. Held, that the indorsement on the fi. fa. did not justify the sheriff in failing to make a levy, and that he Was liable to the plain-1 ff for neglecting to do so.
    The execution of a fi. fa. consists generally of two acts: 1st, levy, or taking the goods into the sheriff’s hands for sale; and, 2d, the sale itself. Either or both of these the plaintiff can control: and it is the sheriff’s duty to execute the fi. fa. according to its mandate, or according to the plaintiff’s instructions.
    
      If a stay be given the defendant in the confession on which the judgment is founded, and die plaintiff direct the sheriff to proceed, notwithstanding the stay, the defendant may, on proper application to a judge, have the proceeding arrested; but the sheriff cannot, because of the stay, justify his refusal to follow the plaintiff’s instructions : semble.
    
    
      Before Evans, J., at Darlington, Fall Term, 1849.
    This was an action against the defendants for the negligence of their intestate, sheriff of Darlington, in not levying an execution of the plaintiffs against one William King. On the 26th February, 1842, plaintiffs entered a judgment by confession against King, for $996 60; and on the same day lodged their fi. fa. with Wingate,, as sheriff. At the end of the confession of judgment was added, in the hand-writing of one of the plaintiffs, “Sales to be stayed until the 26th day of October, 1842,” or words to that effect; and on the fi. fa. was an indorsement as follows: “Sales only under this execution postponed till the 26th October,-1842.” On the evening of the day the execution was lodged,-Wingate called on Ervin; plaintiffs’s attorney, for an explanation of the indorsement on .the execution, who informed him that it was not intended to stay any thing but an actual sale under that execution, and told him to go and levy on King’s property immediately. Ervin also stated that between that day and the day on which the sheriff sent to make the levy, he had frequently urged Wingate to levy the execution; but he declined, saying that he thought there was no danger. King’s property at that time consisted of some negroes, the title to which was in dispute, a stock of goods in his store, some hogs, &c. On the 12th March, 1842, Wingate became uneasy, and sent his deputy to make a levy, who, accordingly, on, the 14th March, levied on all King’s property except the stock of goods, which King, after the 26th February, had assigned to some persons who, before the 14th March, had placed it beyond the reach of the sheriff. ' From the • sales of the negroes, hogs, &c., a balance of $168, after satisfying an older execution and the costs of plaintiffs’s fi. fa., remained in the sheriff’s office, applicable to plaintiffs’s debt.
    His Honor charged the jury that the sheriff was bound, within a reasonable time, to execute his writ of fieri facias, and, in default, he was liable for any damages which the plaintiffs sustained by reason of his neglect; and submitted to them to decide, on a review of the facts, whether Wingate, the sheriff, had been guilty of negligence in not levying on King’s property. He told the jury that, in his judgment, a stay of sale, without further instruction, would imply a stay of levy; but as in this case he was specially instructed that a stay of levy was not intended, and was directed to proceed and levy immediately, he should have obeyed the instruction; and his omission to do so, within a reasonable time, was a neglect of his duty.
    It was said, in the argument of the defendants’s counsel, that the sheriff was not bound to obey the plaintiffs’s instructions. On this subject his Honor told the jury that the writ was the sheriff’s ■authority and guide in the execution of his duty, but a neglect or refusal to obey the reasonable and lawful instructions of the plaintiffs, was an assumption on himself of the responsibility, and he ought to answer to the plaintiffs for any direct loss sustained by reason of his negligence or refusal.
    The jury found for the plaintiffs $150, exclusive of what they were entitled to in the sheriff’s hands. Both parties appealed; but in this Court the plaintiffs abandoned their motion for a new trial, and the defendants alone insisted upon theirs.
    
      J. A. Dargan, for the defendants.
    id J. Moses, contra.
   Curia, per

O’Neall, J.

In this case the plaintiffs’s attorney abandoned their grounds of appeal, so that the defendants’s objections to the verdict alone remain to be considered. They, although several, present only one question — whether the sheriff, when specially instructed to levy, was justified in not levying, on account of the sale being stayed by the plaintiffs.

Our anomalous condition, under the rule that the lien of a fi. fa. is from its lodgment, prevents us from having the aid of authority on this and many other questions arising under the sheriff’s execution of fi. fas.

I have no douht that, in general, the execution of a fi. fa. consists properly of two acts: levy, or taking the goods into the hands of the sheriff for sale, and the sale itself. That the plaintiff in execution can control either or both of these, is, I think, perfectly clear. Were it not so, he might, by stipulating to indulge his debtor, in the ultimate enforcement of his right of satisfaction by sale, be deprived of the property on which his fi. fa. had a lien. For while the sale was stayed (if such a stay prevented a levy,) his debtor might send his personal property into another State, and thus defeat the lien and the possibility of satisfaction by sale when the stay expired.

The whole objection urged is on account of the inconvenience arising from the sheriff being obliged to keep the property for the interval between the levy and the expiration of the stay of sale. But this is one of the incidental troubles connected with the correct administration of the sheriff’s office.

I think, however, the sheriff can make no such objection as that now presented. The plaintiff in execution has the right to control, absolutely, so far as the sheriff is concerned, the fi. fa. The memorandum, “ sales only under this execution postponed until the 26th October, 1842,” was the sheriff’s law, by which he was to be governed until the plaintiff gave him some other. He had no right to go back to the confession, and justify himself by a different stay there agreed upon.' That was for the debtor to enforce or not, as he pleased; the sheriff had nothing to do with it. So when the sheriff was ordered to levy, he had no right to say, ‘that is contrary to your previous• instruction, endorsed on the execution to stay sales.’ The- plaintiffs had the right to proceed, at their peril: the debtor, if it was contrary to'their agreement, might, on a proper case made, arrest their proceeding, by an order made by any of the Judges. But tbe sheriff’s duty is to execute the fi. fa. according to its mandate, or according to the plaintiff’s instructions.

The .motion is dismissed.

Evans and Withers, JJ., concurred.

Wardlaw and Frost, JJ., dissented.

Motion refused.  