#### Gilkey v. Dickerson.

t From Rutherford.* J

An execution binds property from its teste, so that no sale of it after execution issues, is valid against the execution.

It.is not necessary that a sheriffshould absolutely touch personal property, or remove it out of defendant’s possession, to constilue a levy; but the mere delivery by a defendant of a list of his negroes to the sheriff, is no levy; though had the negroes been present, and had the plaintiff signified that he held them bound to answer the execution, and if no opposition was made to the sheriff’s possessing himself thereof if he desired it, it would have amounted to a levy.

On the trial below, before Badger, Judge, tbe case •appeared to be this:

Tbe plaintiff, on tbe 19tb of September, 1820, bought certain slaves of one Mley for value, and bona fide, and took them into possession; and afterwards, on the 7th of October, 1820, the defendant (who was coroner of the county,) levied on the slaves by virtue of an execution issuing from September, 1820, returnable March, 1821,, at the instance of the State Rank against Mley, took the slaves into his possession, and sold them.

The State Rank obtained its judgment at March term, 1820, for $2130, a fa fa. issued thereon to the defendant; {Mley being then sheriff,) returnable 'September term, 1820, and tested of March: the execution was returned by the coroner at September term without any endorsement thereon, when the clerk altered the teste and issued the ■same writ as an alias from September, 1820, to March, 1821, and it was under this last writ that the defendant levied and sold.

The plaintiffs, on the trial, introduced Mley to slioW fhat a levy had been made on the first writ of fa fa. to the value of the debt: Mley swore that the defendant, in. June 1820, called on him and asked him for a list of pro*294perty which he might sell to satisfy the execution, anil ^etJ Sav0 him a list of sundry negroes equal in value to the amount of the debt, but these negroes never were ta-j-en ¡¡p0 possession by defendant, and in September Alley carried them to Tennessee and sold them.

There was no other act done by the defendant as a levy, except taking the list as above stated.

The presiding judge instructed the jury, that there was nothing in the transaction between the defendant and Alley which amounted to a levy to discharge Alley; that the negroes winch plaintiff had purchased were subject to the execution under which they were sold by defend apt in October, notwithstanding the sale to the plaintiff vas fair and for full value; that the defendant was justified in selling them by his execution, and was entitled to a verdict.

There was a verdict and judgment for defendant, and the case stood before this Court on a rule to show cause why títere should not be a new trial.

*

S. e. 2 Hawks 341.

Taylor, Chief Justice.

It will admit of no doubt that the execution which issued against Alley, bound all his property from its teste, which was in March 1820; and notwithstanding a bona Jide sale of any part of it after that period to the plaintiff, it was still liable to he taken in execution. But the plaintiff alleges, that a levy having been made of the negroes, and property belonging to Alley, of sufficient value to pay the balance of the debt, the two negroes now sued for, were discharged from the lien, and became a fair subject of private sale. The inference would he correctly drawn, if a levy on sufficient property liad in fact been made; but it plainly-was not made. It does not appear, that the coroner ever saw the property, or might have seen it if he had desired. The delivery of a list merely, without some act on the part of the coroner amounting to an actual seizure, or sufficient at least to vest a special property in him, so as to *295maintain trover against one wlio converted them before a sale, cannot be deemed sufficient.- Had the property been present when the list was delivered, and the coroner liad signified that he held it bound to answer the execution, and there was no opposition to his possessing himself of i+, had he so desired, it would have, amounted to a levy. For it has never been understood that actual touching the property was necessary, or that it must be remov ed out of the possession of defendant.

The law allows the sheriff to take a bond for its forthcoming, and if he think proper to incur the risk of leaving the property with the debtor without a bond, he is at liberty to do so. The coroner himself, by not returning this levy, seems not to have considered it as one; and upon the whole there is no reason to disturb the verdict.

Hall, Judge.

I think the judgment given in the Superior Court was a correct one. It is not stated in the case whether the alias fi. fa. bore teste before the purchase made by the plaintiff or not; hut the alias was a continuance of the first f. fa. and no position is better founded than tiiis, that an execution binds the property of the defendant before it is levied, so as that no sale or disposition made of it by him is valid against such execution. It is also true, that if the sheriff levies upon property sufficient to satisfy the debt, that property must be accounted for, before other property of the defendant is liable. But in this case, the negroes which the defendant gave the coroner a list of, were not levied upon by him, or taken into his possession; giving such teste was not a levy. I therefore think judgment should he given for the defendant.

Henderson, Judge, was of this opinion also.