
    
      T. C. Weatherby, sheriff, v. W. S. Covington.
    
    It is not necessary to a levy tliat the sheriff should actually seize and keep possession of the goods. It is sufficient if the goods be in the possession of the defendant and the sheriff, having the power to taire them, with the consent of the defendant, indorse a levy on the execution.
    It is necessary to a levy that tire sheriff should, by some unequivocal act or declaration, assert his tille to the goods, under the execution, so that the legal possession and control be manifestly transferred from the defendant to him.
    To perfect a levy, it is not material whether the right of possession be acquired by an actual exercise of official authority, or by the voluntary act of the defendant. A written acknowledgement of a levy is as effectual as an actual levy, and if the goods, in either case, remain in the possession of the defendant, he is the bailee of the sheriff.
    The copying of the defendant’s acknowledgement on the execution, is a sufficient indorsement of a levy, and the omission to make, on other executions, a reference to such endorsement, cannot impair the legal effect and validity of the levy.
    The sheriff, by a levy, acquires the legal property in the goods levied on, and he may maintain an action against the defendant and all other persons.
    Where the delivery of a gift is made in this State, by one who resides in another State, its validity must be determined by our law, and not by the law of the State in which the donor resides.
    
      Before Evans, J. at Marlborough, Bpring Term, 1848.
    The sheriff had levied on sundry negroes, as the property of one Robert D. Thomas, under sundry fi. fas. in his office. These negroes were taken by the defendant out of the possession of William Thomas, son of R. D. Thomas, in whose possession they were left, and from whom the plaintiff had taken a bond and security for their delivery at sale day. The defendant justified the taking under the authority of his fa-yyj]|jara Covington, to whom he alleged they belonged. The facts of the case were as follows, viz: Robert D. Thomas married the daughter of William Covington, the father of the defendant, in L825. Thomas resided in Marlborough district, and William Covington in Richmond county, in the State of North Carolina. In the course of a month after the marriage, Thomas brought his wife home; and shortly after some furniture and two negroes, Luce, a young woman, and Caroline, a small girl, were sent to him by his father-in law. Thomas, after his marriage, resided 3 years in Marlborough, and then removed to North Carolina, where he resided two years, in the neighborhood of Covington. During all this time the negroes remained in his possession. When Thomas was about to return to this State, he sold a piece of land which Covington had given to him, at which Covington be-pame offended, alleging that Thomas had agreed to reconvey it to him at a certain price if he removed from it. The morning that Thomas started, the negro woman, Luce, by Covington’s direction, went to his house, and Thomas, on discovering this, sent Caroline also. The girl Caroline was returned to him by Covington, but Thomas refused to take her, and came back to his former residence without either of the negroes. This was in 1830 or 1831. Within a year after, Mrs. Thomas visited her father, and on her return brought Caroline with her. In 1840, Thomas sent one Easterling With a wagon to Covington, and brought back Luce and her two children, Edmond and Harris, who had been born while she was in Cov-ington’s possession. Prom that time the negroes remained in Thomas’ possession, who exercised all acts of owneiship over them, and they were supposed by all the neighbors to be his, until October, 1846, when they were levied on by the sheriff. In 1838, Thomas was elected Clerk of the Court, which office he held for eight years. He owned a tract of land and five other negroes, which he sold in the beginning of October, 1846, for $11450. He was in good credit and apparently prosperous, but he was, as afterwards appeared, a prodigal man, and on the winding up of his affairs, his debts amounted to near $3000 above the value of his property, ex-eluding Luce and her children, and the 5 negroes he sold. On the 4th of May, 1846, there were executions in the sheriff’s office amounting to 8 or 900 dollars: On the 6th May he confessed other debts, for which other executions were issued, but these did .not amount to more than $30. For the satisfaction of these the sheriff took a levy on the land, furniture, wagon, &c., and on the 5th of October, Thomas gave him in writing a levy of 7 negroes, viz: Caroline and her children, and Luce, Edmond and Harris, to satisfy sundry executions in his office. There was no other evidence of levy, except this which was endorsed on the ecution of M’Daniel, which was the largest in the office. On the 10th October, Thomas privately went off to Florida, leaving the negroes at his late residence, in possession of his son. In a few days afterwards, the sheriff took a bond of the son with security for the delivery of the negroes at sale day. On the 17th, the sheriff advertised all the property levied on, for sale on the 2d November. On the same day, Mrs. Thomas sent her son to let her father know the situation of her husband’s affairs, and on the proposition of William Covington, it was arranged that the negroes should be privately removed to North Carolina, which was effected by defendant, on the night of the 19th. On information of this, the sheriff sent a deputy to North Carolina, who succeeded in bringing off Caroline and her children. On the 2d November, the sheriff sold the land and other chattels for $497, leaving unpaid, of the executions in his office, at the time of the levy, (5th October,) about $500. Between the 5th of October and the 12th, other executions, to the amount of seven or eight hundred dollars, were entered, and on the 21st (two days after the negroes were carried off,) other executions to the amount of near three thousand dollars, were entered. On the sale day in December, the sheriff sold Caroline and her children, for $1190; this paid all the executions in his office at the time the negroes were taken by the defendant, except two or three hundred dollars. All the cases entered on the 21st remain unsatisfied. Subsequently to this, the sheriff brought this aetion for Luce and her children, Edmond and Harris, and William Covington sued the sheriff for Caroline and her children.
    The first question which arose on a motion for a nonsuit, was, whether there was such a levy as vested the negroes in the sheriff, so as to enable him to maintain the action. The Circuit Judge said, in an action by the sheriff, founded on his title derived from his levy, he would hold him to strict proof.
    But he thought the indorsement of the written levy, which Thomas had given him, on the execution, with his subsequent proceeding in taking the bond for delivery at the sale day, was sufficient. The paper which was called the written levy, was to this effect: “I give to T. C. Weatherby a levy on seven negroes, by name, to satisfy sundry executions in his office.” This was copied, but not verbatim, on one of the executions, but nothing material was omitted.
    The second question was, whether William Covington had given the negroes to R. D. Thomas. It appeared in evidence, that by the law of North Carolina, there can be no parol gift of a slave. Every gift must be in writing, proved and recorded in the county where the donee resides. As the donee did not resj<je jn North Carolina, so that the writing, when made, "could be perfected by recording it in the county where he re-jjjg jj0n0l- was 0f opinion the case did not come within the provisions of the Act of the Legislature of North Carolina, but was to be decided by the rules of the Common Law, which was the law of both States, unless altered by Statute. He stated to the jury, that by our law, (which was the Common Law) that if a parent, on the marriage of his child, placed negroes or other chattels in the possession of the child, without any declaration or understanding to the contrary, the law presumed it was an advancement, and therefore a gift.
    The evidence on this point consisted, 1st. of the examination of William Covington, who said that he loaned Luce to R. D. Thomas, when she first came into his possession after his marriage; that afterwards, when Thomas was removing' from North Carolina, he told her to go home, to his house, which she did; she remained in his possession until she was brought away by Easterling. After Thomas’ removal, his wife came on a visit to his house, and wanted Caroline; he told her she might take her at any time, if she and her husband would take her as a loan; he also told her they might have Luce, also, whenever they would receive her in the same way. Afterwards Easterling came for her with a letter from Thomas, and he sent her; he said expressly, that Thomas received the negroes as a loan. 2d. The examination of several members of W. Covington’s family, all of whom said their father had given to each of his children, on their marriage, but in every instance they had been accepted and held as a loan, subject to his right to resume possession, and in their opinion Thomas had réceived these negroes in the same way. 3d. The evidence of Hamer and Caulk, both of whom said that in 1845, Thomas told them that Covington had never given the negroes to him. His Honor charged the jury, that if they were satisfied from this evidence that Thomas accepted the negroes as a loan, and held them as such, then he had no title upon which the sheriff could levy, and they should find for the defendant, unless the sheriff, representing the creditors, had a right to subject these negroes to the payment of Thomas’ debts, on the ground of fraud. As to the rights of creditors, he charged the jury, that where one comes into the possession of personal estate, under circumstances which ordinarily denote a transfer of a legal title, and another, believing, from these circumstances that he is the owner, buys from him, or trusts him, on the faith and under the belief that he is the owner, in such case the creditor had a right to subject the property to the payment of his debt. This was on the ground, that the real owner had enabled the ostensible owner to obtain a credit on the faith that the property was his. The principle rested on the ground of fraud, and' in all such cases the jury ought to be satisfied that the creditor had trusted on the faith that the property belonged to his debtor. If he did not so trust, he could not complain that he had been defrauded. The cases ,of Archer vs. McFall, and Aiken vs. Elkins, were quoted as illustrations of the principle. A great number of witnesses living in Thomas’ neighborhood were examined, who said they always supposed and believed that Thomas was the owner of the negroes, and they would have trusted him on the faith of his being the owner.
    The verdict of the jury was for the full value of the property, according to his directions.
    He was of opinion, that if the defendant was a wrong doer, he should pay the full value. It was contended, that all that could be recovered was the amount, about $500, remaining unpaid of the executions in the office, at the time of the conversion ; but the sheriff was suing for the creditors, who should be put in the same condition as they would have been, but for the defendant’s unlawful act in carrying off the ne-groes. But for that, the sheriff would have sold the negroes, and the junior executions would have been entitled to receive the balance, after paying the balance remaining due of the senior executions.
    The defendant renewed his motion for a non-suit, on the following grounds, viz:
    1st. Because there was no legal levy on the slaves, the subject of the suit, and the plaintiff therefore could not maintain the action.
    2d. Because, -even if there was a legal levy, the slaves having been left in the possession of R. D. Thomas, and the executions against said Thomas under which the alleged levy was made, and all others in the plaintiff’s office at the time of the levy, having been paid before the commencement of this suit, the plaintiff could not maintain the action.
    And for a new trial, on the same and the following additional grounds, viz:
    1st. Because his Honor erred in admitting in evidence a paper signed by R. D. Thomas, purporting to be a levy of the slaves in controversy, given to the sheriff by said Thomas, when said paper was not attached to any execution, and without any evidence that it had ever been attached.
    2d. Because his Honor erred in charging the jury that the •Act of the Legislature of North Carolina, requiring all gifts of slaves to be in writing, was not applicable in this case.
    3d. Because it was clearly proved that the title to the slaves was in William Covington, under whose authority the defendant took them.
    4th. Because under the facts of the case the slaves were not subject to the debts of R. D. Thomas.
    
      Moss, sheriff, v. Moore, 3 Hill, 276; Bryan, sheriff, v. Strait, Dud. 19.
    5th. Because, even if there was a legal levy, the plaintiff had no interest in the slaves beyond the amount due on the ’ executions under which the levy was made, and the said executions having been fully paid, his Honor erred in charging the jury that the measure of damages was the value of the slaves with hire.
    6th. Because, at farthest, the plaintiff was not entitled to recover beyond the amount still due at the time of the trial, on the executions which were in his office at the time of the alleged conversion.
    7th. Because the verdict was, in other respects, contrary to law and the evidence.
    Hanna, for the motion.
    Dudley, contra.
   Frost, J.

delivered the opinion of the Court. ^

Robert D. Thomas, against whom the plaintiff had an execution, gave a written acknowledgment of levy on the slaves in dispute. The acknowledgment was copied on one of the executions. The slaves were left in the possession of Thomas ; and when he left the State, the plaintiff required his son to give security for the production of them. Soon after they were carried off by the defendant.

It is not necessary to a levy that the sheriff should actually seize and keep possession of the goods. It is sufficient if, the goods being in the possession of the defendant and the sheriff having power to take them, with the consent of the defendant, he endorses a levy on the execution. The sheriff must, by some unequivocal act or declaration, assert his title to the goods, under the execution, so that the legal possession and control be manifestly transferred from the defendant to him. It is not material whether the right of possession be acquired by an actual exercise of official authority, or by the voluntary act of the defendant. A written acknowledgment of a levy is as effectual as an actual levy; and if the goods, in either case, remain in the possession of the defendant, he is the bailee of the sheriff. In this case the sheriff went to the defendent’s residence, for the purpose of making a levy; the slaves were at the place, and the sheriff might have taken them; it is not proved, but it may be presumed, the acknowledgment of the levy was then given. The slaves were in the possession of the plaintiff, under the levy, by the obligation of the defendant’s son to produce them to him, at the next sale day. The copying of the defendant’s acknowledgment, on the execution, was a sufficient indorsement of the levy. It supplied evidence of the fact of a levy, for every purpose required by an indorsement. The omission to make, on other executions, a reference to such indorsement, cannot •impair the legal effect and validity of the levy. It follows that, if a levy may be made by the acknowledgment of the defendant, the evidence of that confession is competent to prove the levy.

BateS sh<Mff T. Gist, 3 Me! Cord, 493.

The sheriff by a levy acquires the legal property in the goods. He may maintain an action against the defendant, and all other persons. When the executions are satisfied, any goods, which may remain in the sheriff’s hands, are revested in the defendant, or any person to whom he may have assigned his right. To one of these the sheriff is liable for a re' delivery of such goods; and to meet that liability must have an action against a wrongful taker. The defendant is not the assignee of Thomas. He claims the slaves, as the agent of Wm. Covington ; but Covington’s title has been negatived by the verdict in this case; and Thomas appears to be the legal owner. The defendant is a mere trespasser, having no interest in the slaves. It does not concern him whether the junior executions attached on the slaves, or not; nor can he question the right of the sheriff to sell the slaves and apply the proceeds to such junior'executions. If the proceeds be not applicable to them, and if there would be a surplus of property, or its proceeds, after satisfying the executions in the sheriff’s office, either at the time of the levy, or of the conversion, the defendant has no. right to such surplus; and cannot claim an equivalent abatement from the damages the plaintiff is entitled to recover for a wrongful conversion.

Thomas was a resident of this State; and after his marriage and return to Marlborough district, his Covington, sent to him the slaves in dispute. The delivery which gave effect to the gift, was made in this State, and its validity must, therefore, be determined by our law and not by the law of North Carolina.

The motion is refused.

Richardson, J., O’Neall, J. and Evans, J. concurred.  