#### Ray *vs.*Harcourt.

N EW-YORK,

May, 1838.

An execution or attachment from a court *not of*record, if *actually levied, has*a preference over an execution from a court of record in the hands of the sheriff, under which actual levy has not been made.

To constitute a levy, the goods must be in the view of the officer and subject to his disposition and control; he need not remove them or place them in the keeping of an assistant, but may leave them in the possession of the defendant at his own risk, or take security for their delivery at a future day.

Making an actual levy upon part of the property of the defendant, and includ. ing in the inventory other property, not in the view of the officer, is not stich a levy upon such other property as will secure a priority in a conflict with other executions, although the property be designated by the defend, ant, and entered with his assent upon the inventory.

This was an action of *trover,*tried at the Ulster circuit in October, 1835, before the Hon. Addison Gardiner, then one of the circuit judges.

*496The suit was brought for the selling of a quantity of fire wood and three canal boats, which had been *levied*upon by the plaintiff, as a constable of the town of Kingston, on the .A/^ day of August, 1834, by virtue of three *attachments*issued by a justice of the peace against the property of one Jeremiah J. Clow. The plaintiff had gone to the *places*where the wood and canal boats were, saw them, made an actual seizure, and took an inventory of the property. The defence set up was, that the plaintiff, as sheriff of the county of Ulster, had made a *previous levy*on the same property by virtue of an execution issued from this court against Clow, and had sold the same, and that the avails of the sale were not more than sufficient to satisfy such execution. The *levy*of the defendant was made on the *fourth*day of August, 1834, under these circumstances: The defendant, after receiving the execution, went to the dwelling house of Clow and made an *actual levy*upon the household furniture and other goods and chattels there present, and requested Clow to inform him of any other property that he possessed subject to execution. Clow thereupon informed him that he was the owner of a quantity of fire wood, part of which was on a lot a mile and a half distant, and the residue on a lot five miles distant from his house; and also that he was the owner of three canal boats lying at Rondout, about two and an half miles distant from his house. The defendant then, with the assent of Clow, made an. inventory of the property levied upon by him, including the wood and canal boats, and on the next day advertised the whole of it for sale, and subsequently sold it. The defendant did not, *previous to the levy*by the plaintiff, go to the places where the wood and canal boats were, nor did he see the same. The judge ruled that the defendant had failed in establishing a defence, and the jury, under his direction, found a verdict in favor of • the plaintiff for the amount claimed by him. The defendant asks for a new trial.

*S. Stevens,*for the defendant.

*M. T. Reynolds,*for the plaintiff.

*497
      *By the*Court,

Nelson, Ch. J.

By statute, *2*R. S. 366, § 16, any execution or attachment issued out of any court not being a court of record, *if actually*levied, shall have preference over any other execution issued out of any court, whether of record or not, which shall not have been *previously levied.*The only point in the case is, whether the proceedings of the sheriff on the 4th in respect to the property in question amounted in law to a levy; if it did, the direction at the trial was wrong. In the case of conflict between executions from courts of record and from'1 justices’ courts, the statute has abolished the lien of the former, if it ever existed, from the time they came into the hands of the sheriff, and has made the *levy*the test of priority. What constitutes a levy, according to the practice in this state, has been very well settled, and is not now open to dispute. The officer must take actual possession, and for this purpose goods should be within his view, and subject to his disposition and control. It is not necessary that he should remove them, or leave an assistant in possession : they may be left with the defendant at the risk of the plaintiff, or of the officer, or security for a delivery at a future day may be taken. 16 Johns. R. 288. 3 Wendell, 446. 11 id. 548. 14 id. 123. Testing the case under consideration by these rules, the ruling of the judge was clearly .right, as no levy within the contemplation of the statute was made by the sheriff previous to the seizure under the attachments.

It is possible that the defendant in the execution (Clow) "may have precluded himself from objecting to the regularity of the levy ; that, however, is a question between him and the sheriff, and in no way helps out a defective levy when the controversy exists under the statute between conflicting executions. The defendant, as it respects himself, might so waive a levy in a given case as to dispense with it altogether ; but we could not regard such an act as equivalent to an *actual levy.*No such intimation was given in the case of *Butler*v. *Maynard,*1 Wendell, 551, in giving effect to this *term*(levy) in an analogous case; but the contrary. We there observed, that the statute used the term in the sense well understood in the law, and meant such an one *498as was required before the property could be regularly sold. A *waiver*by the defendant is not such a *levy,*nor is it any levy at all.

New trial denied.