
    Targert versus Hill.
    THIS was an action on the case, against the defendant, for misbehaviour in his office, as Sheriff ; in re-delivering the goods of one Walk, seized in execution, without levying the money. The declaration contained two other counts, but the first was alone relied upon. The facts disclosed in the evidence were as follow :
    Whether a sheriff, receiving an injunction, may surrender goods levied upon.
    
    
      Tagert obtained a judgment in the County Court of Wayne against Walk, sued out a fi : fa : thereupon, and delivered it to Hill, the Sheriff of Franklin County, to be executed ; who seized Walk's goods in execution, and appointed a day of sale, by advertisement ; but having on that day, or before, received an injunction, issued by the order of a Judge, he released the goods, and re-delivered them to Walk ; who disposed of them, and afterwards became insolvent. The defendant returned upon the execution, "Stopped by injunction."
    
    
      Badger for the plaintiff.
    An execution, is considered by the law an entire thing, which, when once begun, cannot be stopped. The Sheriff is bound to proceed, though a supersedeas or injunction, be delivered to him before the sale ; and a seizure to the value operates as a complete discharge to the defendant, who cannot thereafter, be resorted 10. Should the Sheriff forbear to sell, the goods, being perishable, may be consumed, and thus the plaintiff be deprived of his debt. To prevent this, and similar mischiefs, the Sheriff must sell: if he re-deliver the goods, the defendant is both restored to his property, and discharged from any liability to another execution ; or, if liable, he may waste the goods and become insolvent.
    A seizure to the value, not only discharges the defendant, but likewise vests the property of the goods in the Sheriff, who becomes responsible to the plaintiff, and may sue the defendant, in trespass or trover, for taking them away : this proves that the defendant is not entitled to them alter the seizure ; and that consequently a re-delivery by the Sheriff is a wrongful act, which subjects him to answer the debt to the plaintiff. To shew that an execution is an entire thing, and cannot be stopped, when once begun, he cited 1 Burr. 30. 34. Cro. Eliz. 597. Dyer 98. 99. L. Ray. 1072. 1075. Salk. 147, 323.
    
      Baker for the defendant.
    The case of Ross versus Poythress, 1 Wash. Rep. 120, shews that an injunction has the effect of releasing a person taken in execution upon a ca : sa : and I think the reason equally strong, that it should have the effect of releasing goods seized on a fi : fa. Whatever the practice may be in England, the circumstances and situation of this country, render it essential to justice, that the goods should be re-delivered, In that country, it is easy to make the deposit required, on account of the specie and paper, which an extended commerce has thrown into circulation ; which enables every one, who has the value in property to raise as much upon moderate interest, as his necessities demand, by giving a security upon the goods. Here, money can seldom be procured, but by a sale ; and even then, at a great under value ; and were a deposit required, under such circumstances, it would complete the mischief which it was the very object of the injunction to prevent : hence injunctions would seldom be applied for, even in cases where justice required their interposition, since in this view, they would serve to aggravate, rather than lessen, the evil complained of. It may also be mentioned, as some proof of what the law is in this state, that it has always been usual to deliver the goods, though no deposit has been made.
   Moore, J.

I apprehend, that the cases cited for the plaintiff, are found law. The defendant is necessarily discharged of the debt, when the Sheriff has seized property to the value ; for by the act of seizure, the property is divested out of the defendant, until the debt is satisfied, and is vested in the Sheriff, who is absolutely answerable for the debt. He may bring an action as owner, against the defendant, for taking the goods, who being once discharged can never be charged by any new process : nor can the Sheriff’s liability be done away, by any writ or process issuing after the seizure.

An injunction has no such effect ; it is a writ of modern date, in comparison with the rule of law establishing the entirety of an execution ; even its lawfulness was earnestly denied lay the common law Judges, as late as the reign of James 1st. It is a creature of the Court of Equity, which has no power to alter the rules of the common law ; and which could never act upon property, but only in personam, till our act of 1787, cap. 22, sect. 2. An injunction cannot affect the property, it can only subject the persons who disobey it, to attachments ; in strictness, it cannot issue to the Sheriff, who has the goods by seizure, but to the plaintiff in the action only. The Sheriff, who has made a seizure, cannot legally take notice of an injunction, but must proceed as if none had issued, that is by selling the goods and bringing the money into court. It follows that the defendant, having re-delivered the goods to Walk, is liable to the plaintiff's action.

Haywood, J.

The injunction in this state, possesses precisely the same effects and qualities, as the injunction in England ; no act of assembly having moulded it differently : I also agree to the authority of the cases cited for the plaintiff, shewing the entirety of an execution : still it seems to me that the Sheriff acted properly in re-delivering the goods.

The apothegm, that an execution is an entire thing which cannot he stopped when once begun, contains no reason in itself ; nor is it accompanied with any, in the books cited, shewing why the law is so. It is then necessary to search for the reason, and if possible to discover it, in order to understand its extent ; and to discern the cases, to which it is properly applicable. One of the books cited, since I began to speak, says an injunction shall stay the goods in the hands of the Sheriff ; admitting it to be so, it proves that the rule, respecting the entirety of an execution, is inapplicable to the case of an injunction ; for according to the rule, it is necessary to proceed to sell. If the reason of the rule be not universal, but confined to particular cases ; the universality of the terms, in which it is expressed, must be restrained to those cases. When a plaintiff obtains judgment and takes out execution, the law still allows the defendant, to have the cause further examined and provides means of doing so, suited to each particular case of hardship : as by supersedeas, writ of error, certiorari &c ; but in granting this indulgence, it were unjust to place the plaintiff in a worse situation than he was at the time the supersedeas, writ of error, &c, issued. If he hath gained a security for his debt by a seizure to the value, that shall not be taken from him, without furnishing him with an equal or better security ; but as no such security was given at the common law, of which this is a rule, prior to issuing the supersedeas, writ of error, &c, the goods, when seized, were to be retained in the hands of the officer or sold ; and it would be greatly inconvenient to all parties, that they should be retained in the hands of the officer, since it perishable they may be destroyed in the interim ; if living animals, they must be fed, or if inanimate, may require a warehouse : by destruction, the value is lost to the plaintiff or defendant, and to it is if the expences eat up the value.

It is better for all parties that they should be sold, and thence it is, that the law orders a sale, notwithstanding a supersedeas, or other writ of the like kind issuing at common law, without security previously given. Hence arose the quaint saying, that an execution is an entire thing, and cannot be stopped, when once begun ; but the reason of it, as I apprehend, does not apply to any case, where a security equal to the seizure is given by the defendant, before he obtains process, for a stay of the proceedings. Will it then apply to an injunction ? In England, when an injunction issues after the verdict, and before execution, the money must be deposited. Cur. Can. 447, if after execution has issued, the money and costs recovered at law, must first be paid into the Court of Equity. Cur. Can. 448. 2 Brown. Ch. 182, Ch. Ca. 447. We must not look into the old books for the properties of an injunction, the writ itself being of modern date, which like other things has been matured and sitted for the transaction it is used in by experience, and has but lately acquired perfection. When the money is deposited, it is unjust to retain the goods any longer, and it is unnecessary to the plaintiff’s security ; much more unjust would it be to proceed to a sale : hence it is deducible, that the goods are to be re-delivered.

If this be the effect of an injunction issued after verdict in England, the next question is, has any law established practice altered such effect in this state ? There is no act of the legislature for that purpose, and the practice before the revolution, and for five years last past, has been, either to deposit the money, or to give security to pay the debt in case of a dissolution ; according as the circumstances stated were more or less favourable for the complainant. The proceedings in the old Court of Chancery have been inspected, and they prove the practice to have been as I state it. But why require a bond, if the goods are to be retained ? If they are to be sold, notwithstanding the injunction, and if the defendant is absolutely discharged by a seizure to the value ? The plaintiff cannot possibly have any cause of complaint, for which he may sue upon the bond ; he has the full benefit of the seizure, and of the security detained by it. It follows, that either the bond is filed for no purpose, or that the goods are to be re-delivered ; and it is more reasonable to presume the latter, than the former ; more especially, as the universal practice has been to re-deliver the goods ; which, though it will not make the law, is, in doubtful cases, evidence of what the law is : besides the act of 1782 directs the proceedings in our present Court of Equity, to be like those in the Court of Chancery under the old government. From this view of the subject it results, that the defendant acted rightly in re-delivering the goods to Walk :

it is indeed a misfortune which occasions this dispute, the money not having been desposited, nor security given before the injunction issued ; but this was not the fault of the defendant, who was bound to obey the writ, without enquiry whether all necessary steps had been taken before it issued.

As to the authority which says, an injunction shall stay goods in the hands of the Sheriff, it is an old one ; and the position seems to be against first principles ; for the law allows no fee to the Sheriff for such services ; the goods may perish, or incur expence in the keeping : it is far more consonant with legal principles, that they should be sold ; and if they must be sold, the injunction is a dead letter. The property of the goods is not absolutely divested out of the defendant by seizure, for if the money be paid, he shall have them again ; the same of a deposit ; and as in this country, owing to the circumstances stated by the defendant’s counsel, a bond is in some measure substituted in the place of a deposit, a security instead of satisfaction ; the effect of an injunction is in both cases the same ; but in the latter, after a dissolution, no execution de novo may issue, for the defendant is absolutely discharged by a seizure, where he is passive, and does no act to obstruct the consequences of it. But where, by his own act, and at his own instance, the goods are released, upon an obligation made by himself that he is not chargeable, it is no hardship upon him, when upon further scrutiny, it turns out that his obligation is not true, if he is subjected by a new writ. In such cases, the constant practice in this state hath been, to issue a new fi : fa : after a dissolution, and not a Ven. Ex. or Distringas, against the Sheriff who seized.

Verdict for the Defendant.

Upon a rule to shew cause why a new trial should not be had, the case was transmitted to the court of conference. Vide post. 277  