#### JAMES A. WILSON vs. JOHN HENSLEY & AL.

When an officer, who has levied an execution on peisonal property, volunla-rily permits the defendant in the execuion to regain possession of the property, his lien is so far gone, that the levy of a subsequent execution by another officer on the property so in possesion of the defendant shall be preferred.

The ease of *Roberts*v *Scales, 1*Ired. 88, cited and approved.

Appeal from the Superior Court of Law of Yancy County, at the special term in August 1843, his Honor Judge Pearson presiding.

This was an action of trover for a horse, on the trial of which the jury found the following special verdict. The jury find that the defendant McOurry, being a constable of the county of Yancy, and having two executions in his. *67hands, one in favor of the other defendant Hensley against one W illiam EdwardsPfor eight dollars and twenty five cents, ” ^ , and the other in favor of one Samuel Fleming against the said Edwards and the other defendant Hensley for seventy dollars, did on the 7th of September 1841, in the town of Burnsville, levy upon and take into his possession a roan mare the property of the said Edwards — that the said McCur-ry immediately led the mare across the street and delivered her to the defendant Hensley, with the understanding that Hensley should have her forthcoming at the next October Court in Burnsville, to be sold in satisfaction of the said executions — that Hensley then delivered the mare to the said Edwards, with the understanding that he should keep her and have her at the time and place before agreed upon — ■ that Edwards kept her in his possession until the 24th day of September 1841, when the plaintiff, who was also a constable of the said county, and who had executions in favor of different persons against the said Edwards, went to the house of Edwards, levied his executions on the mare, took her into his possession and kept her until the 4th of October, when he exposed her to public sale after due advertisement, at which sale one.Chandler became the purchaser for $45, and soon after his purchase transferred the mare to the plaintiff at an advance of 25 per cent for his bid. The jury further find, that there was no understanding between the plaintiff and the said Chandler before the sale was closed, that Chaudler should bid for and as the agent of the plaintiff. They further find that, after the sale by Chandler to the plaintiff, the defendants took and converted the mare to their own use, and that the value of the mare, at the time of the conversion, was sixty five dollars, but whether upon these facts the plaintiff is entitled to recover the jury are ignorant and pray the advice of the Court, &c. &c.

The Court was of opinion with the plaintiff They held that the right of the first officer commenced with and depended upon his possession — that this possession was lost by the act of his agent in restoring the possession to the debtor, and, of course, the right, which depended upon it, was also *68lost. Judgment was therefore rendered for the plaintiff and defendants appealed.

No counsel for the plaintiff.

*J. H. Bryan*and. *Alexander*for the defendants.

Dattiel J.

We concur with *his Honor*in the opinion delivered by him in this case. The case is within the rule laid down by this Court in *Roberts*v *Scales,*1. Ired. 88, relation to the duty of officers in levying executions on the property of a debtor. When the plaintiff, who made the last levy, came with the executions then in his hands to make the levy, he found the mare, now in controversy, in the possession of the debtor. The levy, which McCurry had before made on the mare, had lost its effect, as to the executions in the hands of Wilson, by the property being then out of the custody or care of McCurry, or his agent, and again in possession of the original debtor. If the agent of McCurry has been guilty of a breach of trust, in permitting Edwards, the debtor, to regain the possession of the mare, he is responsible to him for that conduct; but the plaintiff had nothing to do with that agency. The judgment must be affirmed.

Per Curiam, Judgment affirmed.