
    Chaney Stone v. Samuel Tucker.
    IF goods taken in execution are left in the hands of the defendant, upon a promise by him to deliver them on the day of sale, and he neglect to deliver them, the levy is no satisfaction ; and the officer may justify á subsequent levy, under the same execution, on the goods of a co-defendant, although the latter was merely the surety of the other defendant for the debt due on the execution.
    Tried before Mr. Justice Earle, at Spartanburgh, Spring Term, 1831.
    Trespass, by summary process, for taking plaintiff’s goods. The defendant justified, as constable, under an execution issued by a magistrate against one Sherbut, and the present plaintiff, jointly, for a debt due by the former, as principal, and by the latter as his surety. The defendant had levied on a clock and a bureau, which were pointed out to him, as the goods of Sherbut, by the present plaintiff; but as it was inconvenient to remove them, the defendant, with the assent of the present plaintiff, who agreed to be answerable for the consequences, left thorn in the hands of Sherbut, upon his undertaking to deliver them at the time and place appointed for a sale of them. The clock and bureau were advertised for sale at the time and place appointed, but Sherbut did not deliver them; whereupon the defendant levied on the goods of plaintiff.
    It was contended for the plaintiff, that the first levy was a satisfaction of the execution. The presiding Judge was, however, of opinion, that although the first levy might have been sufficient to render the officer liable to the plaintiff in the ex-eculion, it could not be regarded as a satisfaction, either as to gjjerbut, with whom the goods remained, oras to the present plaintiff, who had asseuted to their so remaining, ana had expressly agreed to be answerable for the consequences. The second levy was therefore lawful, and the present action could not be maintained. Decree for defendant.
    The plaintiff now moved to set aside the decree, and for a new trial, on the following grounds 1. That the first levy was a satisfaction, and the second levy therefore unlawful. 2. That the plaintiff’s agreement, to be surety for the delivery of the goods by Sherbut, did not revive the execution, which was satisfied by the levy. 3. That the agreement, being by paroi, and without consideration, was null and void. 4. That the agreement was oppressive, and contrary to the policy of the law in relation to sheriffs and constables, and therefore void.
    Henry, for the motion,
    cited Hoyt v. Hudson, 12 Johns. 207. Miller v. Bagwell, 3 M’C. 429. Ramsay v. Winn, 2 N. & M, ■ 372, note. Leland v. Creyón, 1 M’C. 100.
    A. W. Thomson,, contra.
    
   Johnson J.

delivered the opinion of the Court.

We concur with the presiding Judge on the ground upon which he has put this case. Besides which, it may be remarked, that the property first levied on being left in the possession of Sherbut, it is clear, that as to him the levy was-no satisfaction ; and not being a satisfaction as to him, we cannot perceive how it could be so regarded as to the plaintiff. The defendant was not bound to him by any contract, nor did he in law owe him any service; and the execution being unsatisfied, he had the right to levy on the plaintiff’s property.

Motion refused.  