#### Beckerdite v. Arnold.

T From Randolph.

A justice’s execution binds chattels from its teste.

This was an action of trover, brought to recover the Value of a mare, and the facts on the trial below appeared to be. these: The plaintiff purchased the mare of on© Dockery, on the 2d or 3d of October, 1822, and the defendant who was a constable, afterwards levied on and sold the mare by virtue of an execution from a justice of the peace against Dockery, dated October 1, 1822, which came to his hands before the sale by Dockery to the plaintiff.

It appeared also that the judgment against Dockery v as obtained in the name of Lamb to the use of Pierce, on the 19th of January, 1822, and that execution was stayed thereon by Lamb. It was held by Norwood, Judge, on the trial below, that the justice’s execution bound from the levy, and not from the teste, and from the judgment rendered defendant appealed.

J. Martin, for the appellant, contended, that as to the stay by Lamb, it did not affect the judgment, it amounted simply to an order not to issue execution until a certain time.

As to the lien created by the execution,- the Court having intimated an opinion that it bound from the teste, Martin did not argue it at length, but referred to Stamp V. Ervine, (2 Hawks 232.)

Taylor, Chief Justice.

No difference exists between the lien of a fu fa. issuing from a magistrate, and one from a County or Superior Court, so far as they regard chattels. Both bind the property from, the teste, which, with respect to a justice’s execution, must be understood, the date of its issuing. The authority of the officer is, in' *297both cases, equally complete to levy and sell tbe property by virtue of tbe execution, and no further act is required to confirm or validate it. But the execution of a magistrate binds land only from the levy; because the authority to the constable is but conditional and qualified; he can only levy upon land for want of goods and chattels to satisfy the execution; and because, after the levy so made, he has no authority to sell, nor is any authority communicated by the same execution, but a return of the levy is to be made to the justice, and by him to the County Court, by whom alone the order to sell land can be made, and by the sheriff alone can the order be executed. The only operation of the first execution, therefore, is to create a lien upon land by virtue of the levy; when that is done, it has discharged its office; and hence it has been repeatedly decided that land is not bound in such an execution before the levy, for at the teste of the execution, it is contingent whether the land will be liable or not. This partial and uncertain effect cannot be predicated of a fi. fa. against chattels, and there is consequently a difference in the respective liens.

Hall, Judge.

It seems that the execution was in the hands of the constable, who is also the defendant, at the time when the plaintiff purchased the property in question of the defendant in the execution. I therefore think that the execution was a lien on the property, so as that the defendant in the execution could not dispose of it; and that the defendant in this case, being the constable, was in the discharge of his duty when he levied upon it and sold it. I think there should be a new trial.

And of this opinion was Judge Henderson.