#### STATE OF NORTH CAROLINA ON THE RELATION OF PELEG S. ROGERS AND Co. vs. ISRAEL F. DILLIARD & OTHERS.

December 1842.

An officer has a right to levy an execution upon a horse, though the owner is riding him at the time.

' Appeal from the Superior Court of Law of Granville county, at Fall Term, 1842, his Honor Judge Settle presiding.

This was an action of debt upon a constable’s bond. The breach assigned was, the failure to levy and collect certain executions, which the relators had placed in the hands of the defendant Dilliard, as constable, against Thomas A. York and W. S. Lloyd. The relators offered in evidence Dilliard’s receipt for the notes of the parties aforesaid; and proved that they had a certain horse of the value of $50, which had belonged to York, but which he swore had been sold and purchased by Lloyd. It was further in evidence, that, after the executions came into the hands of the constable, *103Lloyd and the constable were together at the house of the relator Rogers, and that Lloyd was riding the horse; the relator directed the constable to levy on the-horse and he would indemnify him ; that the constable and Lloyd left in company, and went to two or three publie places ; that the constable endeavored to get Lloyd to dismount, in order to enable him to levy and get possession of the horse; that Lloyd refused to do so, and continued on the horse until the parties separated; that Lloyd returned to the house of York, where he lived, and left the horse5 that on the following day another constable levied on the horse and sold him as the property of York. It was contended in behalf of the relator, and the court so charged, that- the constable had a right to levy on the horse, notwithstanding the owner was on him at the time; and, if the jury collected from the evidence that the constable could have levied and got possession of the horse without a breach af the peace, it was his duty to have done so, and his failure was such a neglect as would render him liable.

The jury found a verdict for the plaintiff, and a motion for a new trial having been made and overruled, and judgment rendered for the plaintiff pursuant to the verdict, the defendants appealed.

Badger and Saunders for the plaintiff,

No counsel for the defendants.

Ruffin, C. J.

It is stated by Lord Coke, 1 Just. 47. a. that a horse, when a man or woman is riding on him, or an axe in a man’s hand cutting Wood, are for that time privileged, and cannot be distrained. But this does not apply to a seizure in execution, though it is probable the objection here taken may have been drawn from it, upon some notion that the cases were similar. Very clearly the passage does not justify it, for it is confined to distress for rent or of beasts damage feasant, and we know that many things can be taken on execution, which cannot, under like circumstances, be distrained. Though we find the rule thus clearly stated, *104with respect to distress, there is no such doctrine in any j with respect to process of execution. There is an ob- [ vious distinction between the cases, which furnishes the reason of the difference, which is, that making distress is the act of the party himself, to whom the law entrusts to some extent the power of self redress, and the seizure upon execution is the act of an indifferent minister of the law, not probably disposed to make an unnecessary seizure, or to make it at an unseasonable period. A man’s house protects'him and his property, if to be got at only by breaking the house,— But there is no authority or reason, which would exempt from seizure, an article in the use of the owner, which would not equally protect it, if in his presence merely. It is as much the duty of the party to surrender to the officer the horse he is riding; as it is to allow him peaceably to take the horse from which he has just dismounted ; and a breach of the peace, or resistance to the authority of the officer, is not more provoked or probable in the one case than in the other: the law requiring in each case submission to its pro- ' cess, and conferring the power to use such force as may be needed to execute the process effectually.

Judgment affirmed. Per Curiam.