#### HENDERSON POTEET *vs.*JAMES H. BRYSON.

Where a forthcoming bond is given for the' delivery of property levied on by' a constable, it is the duty of the' obligors to put the officer in the quiet and peaceable possession of the property, at the time and place specified— otherwise their bond will be forfeited.

Where a covenant is entered'into for the delivery of a variety of articles, the condition is broken, if all are not delivered.

The case of *Thompson,*v. *Gaylord,*2 Hay. 150, cited add approved.

Appeal from the Superior Court of Law' of Cherokee County, at the Spring Term, 1846, his Honor Judge' Pearson presiding.

MEMORANDUM. — By an A’ct of the General Assembly, passed' at *the*Session of 1846-7, the Judges of the Supreme Court were directed to hold an annual term'of the said Court at the Town of Morganton, on the first Monday of August.

Jameb' R. Dodge, Esquire, of Surry County, was appointed by the Judges Clerk of the said Court in May 1847.

The'Attorney General and the Reporter both attended at this Term.

*340The plaintiff, as a constable of Cherokee County, levied an execution, which he had in his hands against William Cunningham, upon certain articles, the property of the defendant in the execution, all of which he left in his possession, by virtue of the Act of the General Assembly, passed in the year 1827, *Rev. St. ch.*45, *sec.*17, taking from him at the same time a bond for the forthcoming thereof, *to*answer the execution. The present defendant was an obligor in this bond. The articles mentioned in it were four head of horses, two oxen, a set of harness, and two waggons. The delivery was to be at Murphy on the 5th day of August. Cunningham lived at Murphy. On the day appointed, two of the horses, levied on and included in the bond, were delivered, and sold at public auction, at the Court-house in Murphy, one bringing *$27*and the other $ 10, prices much below their value. Cunningham then declared, that no more of his property should be sold at that rate, and immediately started for his house, Poteet following him. The other two horses were in the stable of Cunningham, and, when he got there, he found Cunningham at the door, armed with a deadly weapon, and who opposed his efforts to enter. While the quarrel was going on between the parties, the defendant said to the plaintiff, “ If you will say the word I will bring out the property,” and during the altercation he repeated the same words. Poteet made no reply to him at either time. The defendant then observed to him, *“*there lie the waggons, take notice I deliver them to you,” and turned and walked off. The plaintiff immediately after observed to him, “I will hold you bound on your bond.” The waggons were in the street, opposite to the stable door of Cunningham, and in *the*rear of him and the plaintiff; one of them was old and of no value, the other worth $80; of the latter the body was lying on the ground. It was not pretended that either the oxen or the harness were delivered. But it was, on behalf of the defendant, urged, that the waggons were delivered *341and the horses in the stable, in consequence of the plaintiff's not saying any thing to the defendant’s offer to bring them out; and he further contended, that he was not bound to deliver all the property, as that which was delivered, to-wit, the waggons, was worth $80, a sum more than sufficient to discharge the balance remaining due, after deducting the sum of $37 raised by the sale of the two horses. His Honor instructed the jury, that there was no delivery of the horses in the stable ; nor of the waggons, if they inferred that Cunningham was detei’-mined to resist the officer, if he attempted to take them, in the same manner he had resisted the taking of the two horses ; but that there was a clear breach of the bond in the non-delivery of the oxen and the harness. The jury having found a verdict for the plaintiff, the defendant appealed from the judgment thereon.

*Edney*and *J. W. Woodfin,*for the plaintiff.

*Francis,*for the defendant.

Nash, J.

We concur in the opinion of his Honor in the Court below. If there was an error it was one, of which the defendant has no right to complain. It appears to us too plain to admit of a doubt, that neither the horse.s in the stable nor the waggons were delivered. Cunningham, the defendant in the execution, stood at the door of the stable, armed with a deadly weapon and opposed the entrance of the plaintiff. The latter was going beyond the calls of his duty, in attempting to go. into the stable —he had the bond of the defendant to deliver them to him. Nor was it necessary to tell the defendant to go in and bring them out — it was his duty to do so, if he wished to save his bond. The silence of the plaintiff, under the circumstances of the case, when addressed by the defendant, was no discharge of his obligation. Nothing but a positive declaration, on the part of the plaintiff, in answer to the enquiry of the defendant, that he would not re*342ceive them, if brought and tendered, could have that effect. With respect to the waggons, the same remarks apply. When the two horses were sold, Cunningham declared, not that no more of his horses should be sold, but that no more of his property should. This declaration necessarily included the waggons, for they had been levied on and are specified in the bond. His arming himself was, according to his declaration, to protect all ■the property, subject to the execution, and the waggons were protected ,by the same force that protected the horses. The question is not, whether the plaintiff would not have been justified .in taking them into his possession; but whether the declaration of the defendant, under the circumstances, did amount to a delivery, so as to redeem ¡his bond. Td us it appears, as it did to his Honor, who tried the cause, to be a mere mo.ckery so to hold. The delivery, which would save the condition of the defendant’s bond, was such an one as would place the property in the qui,et and peaceable possession of the plaintiff — not one, which called upon him to fight to get the possession.

But a full answer to the defendant’s objection is, that the oxen and harness were not delivered. When a covenant is entered into for the delivery of a variety of articles, the covenant is broken, if all are not delivered. *Thompson*v. *Gaylord, 2*Hay. 150. The defendant’s argument is founded upon the assumption, that the defendant has a right to select what part of the property levied on shall be sold. This is a mistake — it is the privilege of the officer to make the selection. For the time being and for the satisfaction of the execution, he is the owner of the property. 4- Court of Equity might, under peculiar ¡circumstanp.es, pontrol his discretion in the sale, and, after selling as much as satisfies the process iq his hands, he has no right nor authority to sell more, but still he has a right tp have the whole delivered. It is unnecessary to pursue thes.e views any farther. We are of opinion *343that neither the waggons nor the horses in the stable were delivered, and that there is no error in the judgment of the Court below.

Per Curiam, Judgment affirmed.