#### JACKSON STEWART vs. AMOS L. RAY.

An action of trover will not lie .against an officer for levying on goods, which he has seized by virtue of an execution, legal in all its forms, issued the plaintiff and directed to such officer.

A constable is not bound to levy an execution on the property of the principal, in preference to that of the surety, unless the magistrate in his judgment has declared which is surety, and has endorsed such discrimination on the execution.

The magistrate is not bound to make such discrimination, except upon the application of, and due proof by, the surety,

The cases, of Weaver v Cryer, 1 Dev. 337, and Davis v SanderliVj hired, 389 cited and approved.

Appeal from the Superior Court of Law of Yancy County at Spring Term 1844, his Honor Judge Settle presiding.

This was an action on the case, in which the plaintiff declared in two counts; 1st. Trover in taking and converting two horses,abridle andsadle; 2dly. For ■wrongfully levying upon and seizing the property of the plaintiff, who was the surety for the stay of execution on a justice’s judgment, when the principal had property liable and sufficient, and the plaintiff offered to shew the property belonging to the principal and pay the expenses &c. The plaintiff proved that the defendant seized and sold two of his horses &c — that before the sale he proposed to go with the defendant, paying his expenses, and shew him property of one Stanly, whom he considered primarily liable for the debt, which the defendant sought to coerce from him — which proposition the defendant declined. The defendant, after shewing that he was a duly appointed constable of the County, produced a warrant and judgment against one William Stanly and aij execution against the said Stanly and the plaintiff, who, it appeared by an indorsement on the judgment was the surety for the stay of execution. The execution was against Stanly and the plaintiff without; mentioning that the latter was a surety. The levy was on the *270horses &c. of the plaintiff, and the sale was also returned. The then further proved, that Stanly, the original defendant in the execution, had, at the time of the levy made by the defendant, personal property consisting of a horse, four or five head of cattle, and other property sufficient to satisfy the execution. He further proved that on the day of sale Stanly told the defendant that he would pay him thirty dollars in cash, and shew him other property to satisfy the debt, (which was about forty five dollars,) if he would release the property then under execution, which he refused to do.

The plaintiff’s counsel insisted that their client was but a surety under the Act of 1826, Rev. Stat. c. 31, sec. 131, 132, and the officer was therefore liable in this action for selling his property, before he exhausted that of his principal, Stanly. The defendant contended that he was not liable for selling the property; 1st. Because the surety for the stay of an execution does not come within the meaning of the Act of 1826; and 2dly. Because, if it were otherwise, he was not liable in this case, as no indorsement was made on the execution, shewing that he was surety.

His Honor charged the jury that the plaintiff could not recover on the first count in his declaraiton. As the officer sold under a valid process, trover would not lie against him. Upon the second count, his Hokor informed them, that the surety for a stay of execution upon the judgment of a magistrate was a surety within the provisions of the Act of 1826, and although the officer would not be liable upon the second count in the declaration, if the execution had been issued upon a separate paper from the judgment and stay itself, as he could not then be presumed to know who was principal and who was surety, yet as in this case the warrant, judgment, stay and execution were all on one paper, it was not necessary that any such endorsement should be specially made upon the execution.

The jury returned a verdict for the plaintiff, and, after a motion for a new trial, which was overruled, judgment was rendered for the plaintiff and the defendant appealed.

*271No counsel appeared in this Court for either party.

Nash, J.

We agree with his Hokob below that the plaintiff could not recover on the first count in his declaration. To maintain an action of trover, the plaintiff must shew, that, at the time of the conversion, b.e had either an absolute or special property in the goods, and that he had either the actual possession or was entitled to immediate possession. He must then go a step further, and shew that the defendant has wrongfully converted the property to his own use. Here an execution, legal in all its forms, had been issued by a single magistrate against the property of William Stanly and the plaintiff, had come to the hands of the defendant and been by him levied on the property in question. The defendant, then, acting under the mandate of the law, cannot be said to have wrongfully converted the property of the plaintiff. Weaver v Cryer & al. 1 Dev. 337.

Upon the second count, the jury were instructed, that the plaintiff was entitled to a verdict — that he was but a surety and entitled to the benefit of the act passed for the protection of sureties — that, by that act, the property of the surety cannot be taken or sold, until that of the principal is exhausted. We do not feel ourselves called on in this case to decide, whether a person, who becomes a surety on the stay of execution, is within the provisions' of the 131st and 132d. sections of the 31st. chap, of the Revised Statutes; because we think that, if such surety is within its provisions the plaintiff in this case has not taken the necessary steps to avail himself of it. The act was- passed for the benefit of sureties— they may avail themselves of its provisions or not,- as they think proper. In every contract for the payment of money, the parties, who sign the instrument, are, as to the individuals possessed of the interest in the contract,- principals, each, bound to pay the whole, when by its terms the money is due, and each liable to be sued by himself,- if the money is not paid: and in such a case he cannot avail himself of those sections in the 31st Chapter. Davis v Sanderlin, 1 Ired. *272 3 89. The act requires, that, when the case is tried by a WWj they must discriminate in their verdict between the principal and the surety ; but, if it is not brought to their notice, they cannot render their verdict according to the act. It is in the power of the surety to shew by evidence, that he does stand in that relation; if he does not, he loses the benefit intended for him, and it will be too late, when an execution is about to be levied or a sale of his property to be made, to allege he is not the principal, and demand of the Sheriff to look after the property of him for whom he is bound. In like manner, when a justice gives a judgment against a principal debtor and his surety, it is his duty to discriminate between them, and the justice issuing the execution shall endorse this discrimination on the execution. When an indi- ’ vidual stays an execution before a magistrate, the acknowledgment of the surety, entered by the magistrate and signed by the party, binds the latter and is quasi a judgment, upon which, if -not paid when the stay is out, any jusstice, having possession of the papers, may issue execution against the principal and surety. Rev, Stat. ch. 62, sec. 11. Upon the ■ rendition then of such a quasi judgment, it is the duty of the ■magistrate granting it,at the request of the surety, to indorse on it that he is but the surety, and that he craves the benefit of the act. In this case there is no such endorsement on the •judgment or execution ; and the defendant was not bound, to look further than his execution. That commanded him to make the money out of both the. parties defendants in the execution, and he was at liberty to make it out of either. Eason v Pelway, 1 Dev. & Bat. 44.

We think, therefore, there is error in this part of the judge’s charge, and that there must be a new trial.

Per Curiam, New trial awarded.