
    Crockett vs. Latimer.
    Brown contracted to build Crockett a brick house at eight dollars per thousand for the brick; Crockett was to advance money to the hands employed by Brown in making the brick, which advances Crockett was to charge "“to Brown: Held, that the brick made by Brown under this contract were his brick till putin the house, and were subject to executions against Brown.
    Where a person, acting under avoid deputation, levied on property, and the properly, together with the execution, was returned into the hands of the sheriff and by him sold: Held, that such sheriff was protected by such execution in a suit against him.
    John Crockett instituted an action of trover in the circuit court of Carroll county on the 20th October, 1831, against James Latimer for the recovery of the value of a kiln containing ninety thousand burnt brick, seized and converted by Latimer. The defendant pleaded not guilty, and issue was taken thereupon. The cause was continued till the March term, 1836, when the death of Crockett was suggested, and W. Caldwell, his administrator, was admitted to come in and prosecute the suit. At the November term, 1836, Judge Read presiding, it was submitted to a jury upon the proof, and a verdict rendered for the plaintiff for the sum of four hundred and seventy-one dollars and fifty cents. This verdict, upon motion, was set aside and a new trial awarded to the defendant. • It was submitted to a second jury at the September term, 1838, Judge Martin presiding. It appeared in proof, that in the Month of July, 1831, Crockett contracted with Henry H. Brown to build him a brick house in the town of Huntingdon, at eight dollars per thousand brick, and as Brown was poor and embarrassed, Crockett was to advance money in payment of the workmen Brown might employ to assist in making and in laying the brick, with which advances Brown was to be charged as part payment for the house. The brick were made specially for Crockett, who advanced nearly all the money that was paid to the hands who were engaged in making them, but the money so advanced was charged to Brown. Brown with the hands made ninety thousand brick, and having determined to remove to Perry county, notified Crockett that he could not stay to put them up in pursuance of the agreement. Brown and Crockett thereupon had a settlement, to wit, on the 26th day of September, 1831, in which settlement Crockett allowed Brown four dollars per thousand for the ninety thousand burnt brick, and after crediting the value of the brick with the sums advanced by Crockett in making them and other expenses incurred, the balance due to Brown was appropriated to the discharge of notes and mercantile accounts due from Brown to Crockett.
    It further appeared in proof that Gilbert. Hart recovered a judgment in the county court of Carroll county at the June term, 1831, to wit, on the 14th day of June aforesaid, against H. H. Brown for the sum of one hundred and twenty-seven dollars and fifty cents and cost of suit, and that a fi. fa. issued on the said judgment on the 26th day of September, 1831, bearing test the second Monday in September and returnable the second Monday in December ensuing, commanding the sheriff of Carroll county to make' the debt and costs aforesaid. The fi. fa. came to the hands of James. Latimer, the defendant in this suit, sheriff of Carroll county, on the same day it was issued. He handed the said writ to one James Baker, with the following written deputation accompanying the delivery.
    “I, James Latimer, sheriff of Carroll county, authorize and empower James Baker to levy an execution of Gilbert Hart against H. Brown on any property belonging to said Brown in this county which said Hart may show, and to advertise and sell the same. James Latimer.”
    Balter was not a general deputy. Latimer had two eral deputies, but only one of them was in the active performance of his duties. On the back of the fi. fa. were the following endorsements:
    “Come to hand same day issued.
    James Baker, Dep. Sh’ff.”
    “Levied the within execution on a kiln of brick as the property of H. H. Brown this 27th of September, 1831.
    James Baker, Dep. Sh’ff.”
    “The brick hereby levied upon sold for the sum of one hundred and sixty-five dollars, the property in which was, at the time of the sale, claimed by John Crockett; sale made and money received therefor. James Latimer, Sh’ff.”
    Judge Martin charged the jury that the plaintiff, in order to entitle himself to recover, should show a right of possession at the time of the issuance of his writ; that rights resting in contract could not be the subject of an action of trover. The court also charged the jury that they should look to the rights of the parties as they existed at the date of the plaintiff’s execution; that the execution was a lien upon all the personalty of Brown from its test, and that any subsequent sale and delivery of his property by Brown could not alter the plaintiff’s right to have such Ji.fa. satisfied out of Brown’s property so sold and delivered. The jury rendered a verdict for the defendant. A motion to set aside the verdict was made and overruled and judgment rendered, from which the plaintiff appealed in error.
    
      A. W. O. Totten, for plain tiffin error.
    
      1. The plaintiff’s title is good by the terms of the contract; the brick were made expressly for him, in consideration of advances made by Crockett as the work progressed, and without which they would not and could not .have been made. By far the greatest portion of the labor, -funds, &c., employed in the making of them were furnished by Crockett; they were identified and m^de specific as Crockett’s brick. The proceeds of Brown’s labor, under the terms of this contract, belonged to his employer, he having only a lien on the brick for his services. In Blake vs. Nicholson, 3 M. and S. 167, the defendant, who was a printer, had been employed by S. to print a certain number of a work at a certain price for each number; ^the work being printed but not delivered. at the time, S. became bankrupt: it was held that the legal title to the printed work vested in S. as each number was printed, the printer having only a lien for compensation. 12 Petersd. Abr. 264. In Woods vs. Russell, 5 B. and A. 942, determined in 1822, “A contracts with B to build a ship and furnish her with every requisite for sea; the price to be paid by four instalments, two to be paid in the progress of work, and the others when the vessel should be finished and launched. The first two instalments were paid at the time stipulated. The ship remained in the builder’s yard unfinished and his hands at work upon her until the 3d July, and on the the 30th June preceding the builder had committed an act of bankruptcy; the purchaser took possession of the ship on the 2d July, while she remained on the builder’s wharf: held that the general property vested in the purchaser when he had paid half the estimated value of the ship, because the bargain had stipulated for the advances, because they were regulated by the progress of the work, the effect of which was to identify the ship and make it specific as the one the purchaser was to have.” Reported also in 3 Petersd. Abrid. 785. It is admitted that when an order is given to a tradesman to make an article for the purchaser, as a ship or a watch, and it is not finished nor delivered, no property has vested in the purchaser “unless it has been stipulated otherwise.” 1 Chit. Gen. Prac. 125. The case of Mucklow vs. Mangles, 1 Taunt. 318, determined in 1808, is relied upon as an authority to sustain this principle. This is an extreme case, and perhaps not tenable on principle. It decides that where a party contracted with a builder for a barge, and paid him the whole value in advance, and the builder became bankrupt before the completion of the work, he was still the reputed owner within the meaning of the statute 21 Ja. 1, because the barge the purchaser was to have remained unspecific till delivery; it was not identified by the terms of the contract, and the builder had a right to retain that barge and deliver another. From the cases may be deduced the following rule: when a vendor is to make an article for the purchaser, and in the progress of the work it • becomes specific and identified by the terms of the contract as the article the purchaser is to have, the general property vests in the purchaser before its completion, and delivery.
    2. The levy was made by a special bailiff under a warrant in writing not under the official seal of the sheriff. By the act of 1821, ch. 12, the sheriff may appoint two regular deputies, and may also make special deputations. The sheriff' had two regular and known deputies, though one of them was not in the active performance of the duties of his office. The officer who made the levy on the brick was not one of the regular deputies, but a special bailiff acting under the warrant of the sheriff. If the warrant had no seal it was void, and conferred no power on the special bailiff to make the levy; his act in seizing those brick in execution was a trespass; the subsequent sale thereof by virtue of such levy was a nullity, and communicated no title to the purchasers.
    At common law the officers of the sheriff are his under-sheriff, bailiffs, jailer, replevin clerks and county clerks, all of whom are appointed by letter of attorney under seal, or by entry on the records of the county court. Watson on the Office of Sheriff, 25, 28, 34, 350,5 Law Library. The • under-sheriff has general plenary power to perform all the ministerial duties of the sheriff. Ib. 31. He may appoint the other officers of the sheriff, as a bailiff. Ib. 57, &c. Common bailiffs are the ordinary officers of the sheriff, and are bound in an obligation with sureties for the faithful discharge of their duties. Special bailiffs are appointed by the sheriff merely for the execution of a particular writ, at the instance of the plaintiff, (Watson’s Sheriff, 35,) and for whose conduct the sheriff is not in any respect liable at the suit of the plaintiff; “he is not the general recognised officer of the sheriff like the under-sheriff; it is from the warrant and not from his appointment as a sheriff’s officer that the bailiff derives his authority to execute the writ;” the sheriff is not liable for his acts without proving the warrant: if he act in his office without a regular warrant, he is a trespasser, nor will a warrant subsequently sealed and delivered to him legalise his act. Watson’s Sheriff, 36. Brake vs. 
      Sikes, 7 T. R. 113: 3 Stark. Ev. 1337: Hall vs. Rocha, 8 T. R. 187: Taylor vs. Richardson, 8 T. R. 505: 4 R. 119.
    In executing a writ, a sworn and known officer, be he sheriff, under-sheriff, bailiff or sergeant, need not show his warrant or writ when he cometh to serve it, although the party demandeth it; but a special bailiff must show his warrant if the party demand it, otherwise he need not obey it. Watson’s Sheriff, 58.
    Now this warrant, which is the sole power of the special bailiff to act as the special agent of the plaintiff, must be a letter or power of attorney, under the hand and seal of the sheriff otherwise it is a perfect nullity. Watson on the Office of Sheriff, 57: 2 Saund. Rep. 305, a, note 13: Cro. Eliz. 53, Norwich vs. Bradshaw. For form of warrant on fii. fa. see Watson, 378.
    The execution, therefore, and the proceedings thereon, conferred no right on the defendant, furnished no protection to him, and as the brick were in fact delivered, the right vested in the plaintiff.
    
      M. Brown, for defendant.
   Green, J.

delivered the opinion of the court.

We are first to enquire whether the brick in controversy belonged, when levied on, to Crockett or to Brown, the execution debtor. The evidence is, that Crockett contracted with Brown to build him a brick house at eight dollars per thousand brick, and that as Brown was poor and embarrassed, Crockett was to advance money in payment of the workmen Brown might employ to assist in making and laying the brick, with which advances Brown was to be charged as part payment for the house. The brick were made specially for Crockett, who advanced nearly all the money that was paid to the hands who were engaged in making them, but the money so advanced was charged to Brown.

We think that, according to this state of facts, the brick were the property of Brown and not of Crockett. These facts do not bring this case within the class of cases cited by the counsel of the plaintiff to show that they were Crockett’s -brick. Those were cases where the specific article was made for the employer and identified as his, but here no specific brick belonged to Crockett; the house was the thing he contracted for, and in payment for building which he had made advances. Had Brown built the house and part of these brick been left, most certainly Crockett would have had no claim to them. Having obtained the thing he contracted for, his agreement could not extend to and compel him to pay for any surplus materials, although prepared by the workmen expressly for his house. In the cases referred to in the argument, the ship was built upon a special contract and advances in payment of the work were made as the work progressed, according to the contract, thus designating that particular article as the property of the person for whom it was made; but if the question had arisen whether the timbers that had been prepared for the ship belonged to him for whom the ship was to be built, the case would have been very different. It never would have been held that every stick of timber as it might be prepared belonged to him for whose ship or house it was intended.

2. Is the sheriff protected by the execution in virtue of which he sold the brick? We think he is. The execution bears test before the time Crockett purchased the brick from Brown, and consequently was a lien on Brown’s property and bound these brick. But it is insisted that the levy was void, because the levy of the execution was made by a special deputy, whose authority was not under seal. If the question necessarily arose, we should hesitate long before we would decide that the written authority of a sheriff to a special' deputy is void unless it be under his seal; but the question does not arise in this case in such way as to make it indispensable that we should decide whether this deputy had 'power to make the sale or not. It is true, the levy was endorsed by the special deputy, but the execution was returned by him to the sheriff, who himself proceeded to make the sale. This suit is brought against the sheriff, Latimer, for his conversion of the property; but if he took the brick into possession, having the execution in his hands by virtue of which he made sale and delivered them to the purchaser, he is protected whether the deputy had to make the levy or not. Let the judgment be affirmed.  