
    Robert Newell against John Sibley.
    in TRESPASS.
    Levy of an upon personal property, 
    
    THIS action was brought, for a trespass in taking away a quantity of wood on Tice’s landing,' in the county of Salem. It was tried before justice Rossell, at the circuit in June 1816, and a verdict rendered for the defendant.
    *At the trial it appeared that one Dayton Howell, owned the wood, before and upon the 28th January 1814, and the plaintiff claimed it, by virtue of a sale from Howell, on the 12th of February 1814. The defendant was sheriff, and on the 28th of January 1814, received one execution against the goods and chattels of Howell, and on the 3rd of February another; both issuing out of the Common Pleas of that county. The endorsement upon the executions, of the levy which was made, was dated on the 10th of February; and it appeared, that sometime in that month, the sheriff called at Howell’s, but finding him very sick, said nothing to him about these executions. The sheriff sold the wood at public vendue on the 2nd of March, having first taken a bond of indemnity from the plaintiff in the executions. At the sheriff’s sale, the plaintiff, Newell, set up a claim to the wood, as his own, by purchase from Dayton. After the evidence was closed, a motion for a nonsuit was made but overruled. The judge, in his charge to the jury, expressed it as his opinion, that the wood was bound, from the time of delivering the execution to the sheriff and that any subsequent sale by Howell was void, though without notice and prior to the levy. Under this opinion of the court, a yerdict was taken for the defendant, subject to the opinion of the court at bar, on a rule for a new trial.
    
      
      Crane and Scott in support of the rule, cited. 2 Bac. 733. 2 Fj¡. Ca. 381. ! Esp. 273. 5 Mod. 376. 2 HI 449. 3 Dali. 213, 358. Pen. 8m. Con. 64. 9 John. 132. 8 John. 452.
    
      D. Elmer and Ewing contra.
    
      
      
        Cliver vs. Applegate, 2 South. 480. Brink vs. Decker, Pen. *902. Wintermute vs. Hankinson, 1 Hal. 140. Lloyd vs. Wyckoff, 6 Hal. 221. Mathews vs. Warne, 6 Hal. 305. Sterling vs. Van Cleve, 7 Hal. 294. Cook vs. Wood, 1 Har. 254. Brewster vs. Vail, Spen. 57. James vs. Burnet, Spen. 635. Caldwell vs. Fifield, 4 Zab. 150. Boswell vs. Green, 1 Dutch. 390. Moses vs. Thomas, 2 Dutch. 124. Dean vs. Thatcher, 3 Vr. 470. Todd vs. Hoagland, 7 Vr. 355. Walker vs. Hill, 7 C. E. Gr. 530. Casher vs. Peterson, ante 317. Bordine vs. Combs, 3 Gr. 412.
      
    
   The Court.

After argument, directed the rule to be discharged and judgment entered upon the verdict.

Rule discharged.  