#### John Douglas *v.*William Mitchell.

From Person.

The Plaintiff being a Constable, levied an execution on the Defendant’s Horse. It was agreed between them, that Üefendant should ride the horse home, and the Plaintiff would wait for the money. After the Defendant took possession of the horse, Plaintiff seized him and claimed to hold Kim under the execution. Defendant by violence disengaged the horse from the Plaintiff and rode him off. Plaintiff broughttrover for the horse, and he is entitled to recover ( for

His agreement with the Defendant is a mere voluntary courtesy, not binding on hi-ifi.- The execution remained unsatisfied, and its efficacy unimpaired, and justified the Plaintiff to re-seize the horse. If, therefore, it be conceded, that the first levy of the execution was discharged by the agreement, the second seizure re-vested the property in the Plaintiff..,

This was an action of trover for a horse, 'fThe Plaintiff being one of the Constables of Person County, had in his hands a Writ of *'fieri Jadas*against the property of the Defendant, which lie levied on a horse. After the levy, the Defendant,requ«sted to he permitted to retain'1 the possession of the horsd and it was agreed between him and the Plaintiff that th¿ Plaintiffvshould call the next day at his house, and receive the money due on the execution *;*and if the Defendant coiild not then pay it, the Plaintiff would wait two or threfe weeks, and the Defendant might take the horse and ridfe him home. The Defendant then delivered the horse to a boy, who was holding the bridle, when the Defendant sqid, he would ride the horse home, and went towards thé horse for that purpose. The Plaintiff followed, and taking hold of the bridle, claimed to retain the horse by virtue of the execution, and requested the Defendant to surrender him. The Defendant refused, insisting on the agreement, and threatening violence to the Plaintiff if lie did not give up the bridle. The Plaintiff declared that he was doing his duty as enjoined by the execution, and that he would not let the.horso go out of his *240possession. The Defendant drew a sword, and giving the Plaintiff a stroke with it, disengaged his horse and rode him off.

The Counsel for the Defendant insisted, and requested the Court so to instruct the Jury, that the agreement operated to discharge the levy, and re-vest the property of the horse in the Defendant, and that the Plaintiff could not re-seize the horse until the agreement expired. The Court refused so to instruct the Jury, saying that the agreement was not obligatory upon the Plaintiff as a contract, for want of a consideration. The Plaintiff might, at his own risk, have suffered the 'morse to remain with the *Defendant;*but then the Defendant’s possession would have been upon the Plaintiff’s licence, and the Plaintiff might, at any time, deprive him of it. That besides this view of the case, the Plaintiff' might, after the agreement, make a second seizure, and, having done so, that vested the property in Mm, and entitled him to recover in this action, although it should be conceded, that the agreement discharged the first seizure. There was a verdict for the Plaintiff; and a rule for a new trial being granted to the Defendant, and, on argument, dischai*ged, the Defendant appealed 5 and

Henderson, Judge,

delivered the opinion of this Court:

It may he conceded, without prejudice to the Plaintiff’s right of recovery, that the first levy was raised or discharged by the agreement stated in the *case;*yet the Plaintiff is entitled to recover on the second seizure or levy. For that which is called a raising of the first levy, was a mere unexecuted voluntary courtesy, which might, at any time, ho revoked at the pleasure of the officer. But suppose the officer had actually restored possession of the horse, and had agreed to wait two or three weeks, or for any other period, the execution was not thereby satisfied, or its efficacy impaired 5 which is the true criterion whereby any acts under it are to be tested : and it remained in full force and vigour, and not only justified the making of *241the seizure, but required it. Upon every principle, the Plaintiff is entitled to recover.