#### WILLIAM RIVES *vs.*J. F. PORTER, & AL.

Ah officer, who, under a *ft. fa.*from a justice, seizes a horse and mule,, puts them up-in a ¡¡table — though it be on- the premises of the defendant — and sleeps on the premises during- the night of the seizure has such a possession as justifies him in having an action against another-officer, who goes during that night and takes away the property under, another *fi.fa.*from a justice.

It would be unnecessary to require an officer to remove property instantly-It answers all the purposes of-giving notoriety to the levy, for the officer to-take possession of the property on the premisos, provided he' remain therewith it so as *to*be able to exercise-over *it*that dominion, which owners in. possession usually exercise,

Appeal from the Superior Court of Mecklenburg,. County, at the Spring Term, 184S-, his Honor Judge-Caldwell, presiding..

The action is Trover for a horse and: mu-Ie, and was tried on the general issue. The case states these facts*. The plaintiff was a constable and received, several executions, which were issued on judgments of a Justice of the Peace against Hayesand, by virtue of them, he-went to the residence of Hayes and seized the horse and> mule, som,e corn in a crib, and- other chattels. He then made a schedule of the articles and delivered the same,, with the property, to John W. Hayes to keep for the-plaintiff on the premises, until it should be sold. John W. Hayes- was- an infant son of John Hayes and resided, with his father. He was ploughing with, the horse and mule, when- the plaintiff seized them, and he undertook to keep them, for the plaintiff as requested. He after-wards continued to. plough the horse-and- mule on the farm, and he fed them, out of the crib, and also supplied his father’s- family with, bread as-had been, usual. Sometime afterwards, the defendant, Porter* who was also a constable, received other Justices’’ executions against Hayes; and the plaintiff, learning the same, told him of.” the levy he had made, and that he had left the articles in the custody of John W. Hayes to keep for him, and warned; *75him not to take any part of them, unless there should be •a residue after satisfying the executions the plaintiff had. The plaintiff then, on the evening of a certain day, went again to the plantation of Hayes, and took the horse and mule a second time into his own possession, and put them into a stable there at night and fastened the door, so as to keep them in, though he did not lock it The plaintiff slept at Hayes’ that night, and in the course of the night, the defendants went there and opened the stable and took away the horse and mule, which were afterwards sold under the executions in Porter’s hands.

The Court instructed the jury, that, if the plaintiff left the property with the debtor’s son on the plantation, for the case and favour of the debtor, it was a fraud on other creditors, and the defendants were justified in seizing, it under their executions. But that, if the plaintiff constituted John W. Hayes his agent in good faith, for the purpose of keeping the property for the plaintiff until the day of sale, he might lawfully do so, unless the sale were unreasonably delayed; and that, if the plaintiff did thus act in good faith, the subsequent use of the property for the debtor’s benefit would not, of itself, impair the plaintiff’s right or impeach the levy. And the Court further instructed the jury, that by going to Hayes’ and taking-actual possession of the horse and mule the second time and putting them in the stable for the night, and remaining on the premises that night, the plaintiff terminated the possession of John W. Hayes, as his agent, and resumed it himself; and that thereby, at all events, the property vested in the plaintiff, and that by taking the horse and mule out of the stable that night and after-wards selling them, the defendants were liable in this action.

There was a verdict for the plaintiff, and from the judgment the defendants appealed Upon the ground of error in the instructions given.

Osborne, for the plaintiff.

*76*Boyden,*for the defendant.

Ruffín, C. J.

The case might have been made to appear more fully and satisfactorily on the first point, if the periods of the respective seizures had been stated, and the age and capacity of young Hayes to hold possession against his father, and whether the plaintiff advertised a sale under the first seisure or not, and the proportion the debts bore to the value of the things seized. But the defects in those respects are less material, because the case need not be decided on that point, as the plaintiff was clearly entitled to recover upon his title acquired by his second taking, and the possession held by him at the time the defendants took away the property. By the statute, goods are not bound *by*a *fieri facias*issued by a Justice of the peace, but from the levy. Therefore, the defendants could not justify the taking under the executions in Porter’s hands, if at that time the goods were bound by a levy made by the plaintiff at any previous time. Such was the case here ; for, if all that was done under the first levy by the plaintiff be thrown away, still the plaintiff was at liberty to seize the property again, and he did seize it in the evening preceding the night in which the defendants took it. The ease does not profess to set forth the evidence merely, upon this part of the transaction, but the defendants’ exception states the several circumstances affirmatively as facts ; and upon them it is seen, that on that very day the plaintiff in his own person took the actual possession of the horse and mule, and shut them up in a stable for the night, and then he remained on the premises for the purpose of keeping the possession. That we hold to be sufficient to vest and continue the title in him. It would be unreasonable to require an officer to remove property instantly. It answers all the purposes of giving notoriety to the levy, for the officer to take possession of the chattels on the premises, provided he remain there with them, so as to *77be in a situation to exercise over the things that dominion, which owners in possession usually exercise. It was not requisite that the plaintiff should carry away the articles that night, nor that he should sleep in the stable with them, nor set a guard there over them. A delay of a day or night in removing things seized by an officer is not unreasonable nor suspicious,' when he remains on the premises with them: and here the articles were placéd where every body keeps such things, and where, probably, the horse, which the plaintiff rode tó Hayes’ that day, was also kept. The horse was not more in the possession of tbs plaintiff than the horse and mule, which he had levied on, as the property of Iiayes ; and the one should be as much protected by the law as the other.

On this point, therefore, without adverting to the other, the judgment should be affirmed.

Pnit Curiam. Judgment affirmed.