
    James Brian, sheriff, vs. Richey Strait.
    To enable a sheriff to maintain trover for goods taken in execution, be must have made an actual and effectual levy.
    Although a levy generally implies seizure, yet manual caption is not always necessary; a seizure of part of the goods in a house in the name of the whole, is an effectual levy upon the rest; and an inventory would furnish the evidence of all the goods levied on.
    But in all cases it is essential to a levy, that the officer should have the power to take possession ; the goods must not only be under his view, but within his power and subject to his control.
    BEFORE EARLE, J„ AT YORK, FALL TERM, 1837.
    This was a summary process for a bag of cotton.
    One Hemphill had bought some cotton at a gin, from one Hudson, and took an order from him for it, to the defendant, who had hauled it there. He refused to deliver it. Hemp-hill went to the sheriff’s office, and obtained an execution against Hudson, and perhaps a deputation, with which he returned to .the gin. He said he intended to levy on the cotton, which was then in the act of being packed — the bagging was under the screw and there yet remained a portion of the cotton to be put in. Hempbill testified that be went up, laid bis band on the bag, and made known that be levied on it. The owner of the gin said that he went up, intending to levy, but a controversy arose, and he thought Hempell forgot to levy.
    It was clear that Strait resisted the levy, refused to acknowledge it, and to give up the cotton, which, as soon as packed, be removed with other bags of bis own. Hudson bad sold the cotton to one Moss, and the agreement between Moss, Hudson, and the defendant, was, that the defendant should have the cotton packed with bis own, haul it to Columbia, and sell it.
    The presiding judge stated that be thought it clear that the sheriff did not have possession of the cotton, for which reason the levy was incomplete, and vested no title in him. He accordingly decreed for the defendant.
    The plaintiff appealed, and moved for a new trial.
    1st. Because bis Honor erred in deciding that there bad been no levy on the cotton by the plaintiff.
    2d. Because plaintiff bad levied on the cotton, and was entitled to maintain trover against the defendant, for taking it out of bis possession.
    Williams, for the motion.
    Witherspoon, contra.
   Curia, per Earle, J.

To enable a sheriff to maintain trover for goods taken in execution, be must have made an actual and effectual levy; for by this only can be acquire the special property and the right of possession necessary to give him a right of action. Although a levy generally implies actual seizure, yet manual caption is not always essential: for a seizure of part of the goods in a house in the name of the whole, is a good seizure of all; in such case 'an inventory would furnish evidence of the goods levied on. And in Moss vs. Moore & Adams, decided last term, where the sheriff levied on all the goods of the debtor, making an inventory and endorsing it on the execution, with the knowledge and consent of the defendant, it was held a good levy on a yoke of oxen, then in his view and in bis power, although be made no actual seizure of them, and permitted them to remain on the premises with the consent of the debtor But in all cases it is essential to a levy, that the officer should Have the power to take possession. The goods must not only -be under his view, but within his power, and subject to his control. It no more constitutes a good levy to declare Ms intention, although he may lay his hand upon it, while the property is in the possession of another who refuses to yield it up, than it would to make proclamation of a levy on goods locked up in a house not within his view.

In this case the subject of the supposed levy was in the possession of the defendant, who resisted the levy, and retained the possession. The officer never acquired possession, nor had it in his power — there was, therefore, no effectual levy to vest title in the sheriff. The decree for the defendant must be sustained, and the motion is refused.  