#### Taggert vs. Hill.

/"'•ÁSE against the defendant for a misbehavior in his office, in re-debvering the goods of one Walk, seized in execution, without levying the money—there were two other counts, but the cause rested upon this. The following facta appeared upon the trial: Tagert obtained a judgment in the county court of Wayne, against Walk, took out execution thereupon and delivered it to iliil, the sheriff of Franklin, to be executed, who seized Y?Vd:/s goods in execution, and appointed a day of sale by advertisement; but having on that day or before, received an fojtyactton issued by judge Williams, he released the *82goods and re.delivered them to Walk, who afterwards disposed of them and became insolvent. Hill returned upon the execution “stopped by injunction.”

Badger for the plaintiff.

An execution is an entire thing, and when once begun to be executed, cannot be stopped ; it must proceed, though a supersedeas or injunction be delivered to him before the sale. The defendant, by a seizure to the value, is discharged of the debt, and cannot afterwards be resorted to. Should the sheriff forbear to sell, the goods being perishable, may be consumed, and the plaintiff lose his debt : To prevent this mischief, the sheriff must sell and not re-deliver the goods, for then the defendant will have his goods and not be liable to any further execution ; or if liable, he may waste and consume them, and become insolvent. The defendant being db-charged by a seizure to the value, the property in the goods seized, vests in the sheriff, and he becomes answerable to the plaintiff; he may sue the defendant in trover or trespass, lor talcing them away before the debt is satisfied; which proves, that after the seizure, tfie defendant is not entitled to them— consequent'}' a re-delivery by the sheriff is a wrong act, which subjects him to answer the debt to the plaintiff: And to prove that an execution is an entire thing and cannot be stopped when once begun to be executed, he cited 1 Burr. 30, 34. Cro. El. 597, Dyer 93, 99. L. Ray, 1072, 1075. Salk. 147, 323.

Baker, e contra,

cited a case from Washington’s reports, decided by the court of errors and appeals in Virginia, where a defendant taken in execution upon a ca. sa. had been released by the sheriff on the receipt of an injunction, and held well. He argued, that however the practice may be in England, it is very proper in this state, that the goods should be re-delivered ; ¡.here the money is deposited before the injunction issues, and can be easily borrowed, owing to the great influx of money and paper representing money, their extensive trade has put in circulation ; but here it is sometimes, nay often, next to impossible to procure it upon any security : There, if money must be ■ raised after the execution is begun to be executed by a seizure, sc may be raised by a security from' the goods at a model ate rate of interest upon the money, without a sale of the goods; here it cannot be procured in most instances but by a sale, and .that too at a great undervalue ; and this completes the mischief the injunction means‘to avoid. Were a deposit required in this state In all cases before an injunction could issue, that alone would prevent thf m in many cases, where really essential to jus-¡ice. The practice in this state has always been to re-deliver the property upon receipt of the injunction, though no deposit has been made, and this is some proof of what the law is.

Moore, Judge.

The cases cited for the plaintiff, are sound law ; The defendant is necsssariiy discharged of the debt when *83the sheriff has seized property to the value. By the set of seizure, the property is divested out ot the defendant until the debt he satisfied and vested in the sheriff, who becomes absolutely answerable for the debt.-TThe defendant is liable to an action of trover or trespass, to be brought by the sheriff as owner, lor taking away the goods; and the defendant being once discharged, can never afterwards be charged by any new process, nor can the sheriff’s liability be done away bjr any writ or process issuing after the seizure: An injunction has no such effect j that is a writ of modern date, in comparison of the tule about the entirety of an execution 5 its lawfulness was violently opposed and denied by the common law jpdges, as late as the reign of James the first j it is a creature ot the court of equity, which has uo power to alter any common law rule nor its operation, and which could never act upon property by any process, but its personam, only. Till our act of 1787, ch. 23, sec. 2, cur injunction couid not affect the property, and can only subject the person who disobeys it to attachment; it cannot.in strictness issue to the she!iff, who has the goods Ry seizure., but to the plaintiff in the action only :-.-Th$ sheriff who has made a seizure, cannot legally take notice of an injunction, and must proceed as if none had issued that is to say, by selling the goods and, bringing the money into court ¡ consequently the defendant should not have re-delivered the goods to Walk j and haying done so, is liable to the plaintiff’s action.

Hayvwod, Judge.

=-The injunction in this state possesses the same effects arid qualities precisely, as the injunction in England* There has been bo act of Assembly ' o give it different effects or (qualities % Also the cas-" a cited for the plaintiff about the entirety of an execution, are good law 5 still it seems to me the sheriff acted properly in re-delivering the goods. The apothegm* that an execution is. an entire thing, ard cannot, be stopped when once begun to be executed, contains no reason in itself,' and is. not-accompanied by any in the books cited, that shews why the law is so ; — —it becomes, necessary then, to search for the reason, and to discover it,, in order to understand how far it extends, and. to what cases it is properly appiicable.-r-Gne of the books this, moment cited since-1 began to speak, says, an injunction shall stay the goods in the hands, of the sheriff; admitting it to be so, that proves the rule about the entirety of an execution, to be inapplicable to the case of an injunction ; for by the rule, it: is necessary to proceed and sell;, if w.e discover that the. reason of the rule is not universal and reaches only, to particular cases, the universality of the terms in which.it is conceived,. m.ust be restrained to those cases. When the plaintiff obtains judgment and takes out execution, the law still allows the defendant to have the cause further examined, and provides various means of doing so, suited to each particular case of hardship 5 as-by *84supersedeas, writ of error, certiorari, &c. blit in granting ibis indulgence, it were'unjust to place the plaintiff in a worse situation than he stood in at the time the superhedeas, writ-of error, 8tc. issued. If he has gained a security for bis debt, by a seizure to the value,, that shall not be taken from him without giving an equal or better security; and as no such security was given at the common law, of which this is a rule, prior to issuing the supersedeas, writ of error, See. the goods when seized, were tobe retained in the hands of the officer or sold ; and it would be vastly inconvenient to all parties that they should be retained in the hands of the officer — for if perishable, they may be destroyed in the interim; if living animals, they may be fed ; or if inanimate, may require a warehouse : By destruction, the value is lost to the plaintiff or defendant, and so it is if the ex. peaces eat up the value. It is better for all parties that they be sold ; and it is for that reason that the law orders a sale, notwithstanding a supersedeas or other writ in the nature of a super» sedeas, which issues at the common law without any security previously given; — hence arose the quaint saying, that an execution is an entire thing, and cannot be stopped when once be. gun lobe executed ; the reason of it extends to no case where a security equal to the seizure, is given by the defendant before he obtains process, for a stay of proceedings : — Will it then ap. ply to the case of injunction ? In England, when an injunction issues after verdict and before execution, the money must be deposited. Cursus Concellaria, 447. if after execution has issued, the money and costs recovered at law must first be paid into the court of equity. Cursus Concellaria, 448. 2 Brown’s Ch. 14, 182. Ch. C. 447. We must not look into the old books for the properties of an injunction ; the writ itself is but of modern origin, and like other things, has been matured and fitted for the transactions it is used in, and has but lately acquired perfection. When money is deposited, it is unjust to retain the goods any longer, and it is unnecessary to the plaintiff’s security ; much more unjust would it be to proceed to a sale — •• hence it is deducible that the goods are to he re-delivered; and if this be the t fleet pf an injunction, issued after a verdict in England, the next question is, has any law or established practice altered such effect in this state ? There is no act of Assembly for that purpose ; and the practice before the revolution, and for five years last past, has been either to deposit the money or give security to pay the debt, in case of a dissolution j according as the circumstances stated, were more or less fa-' vourable for the complainant. The proceedings of the old court of chancery in this country have been inspected, and they prove the practice'to have been as I state it; but why require a bond if the goods are to be retained? If they are to be sold, notwithstanding the injunction, and if the defendant is pbso. *85lately discharged by á seizure to the value ? The plaintiff car-net possibly have any/ cause of complaint for which he may sue upon the bond ; he has the full benefit of the seizure and oí the security detained by it: It follows,' that either the bond is filed lor no puipose, or that the goods are to be re-delivered ; and it is more reasonable to presume the latter than, the former- — the more so, seeing the universal practice has been to re.deliyer the goods, which, though it may not make the law, is evidence in a doubtful ease oí what it really is; and as our act of 1802, directs the proceedings in our present court of equity, to be like these. in the court of chancery under the old government; — -upon this view of the subject, the defendant acted rightly in re-delivcring the goods to Walk: It is indeed a misfortune which occasions this dispute — the money not having been deposited nor security given before ¡,the injunction issued; that is not the fault of she defendant, who was bound to obey the writ. without enquiring whether all necessary steps were taken before it issued. As to the book which says the injunction shall stay the goods in the hands of the sheriff, it is an old authority ; there is no fee allowed by law to the sheriff for such service ; the position is against first principles, for the goods -may perish or inenr ara expense in the keeping, it is more agreeable to-principles that they should be sold 5 and if they' must be sold, the injunction is 8 dead letter. The property of the goods is not absolutely divested out of the defendant by seisure, for if-the money7 be paid, he shall have them again ; and that is done by a deposit.— And as in this country, owing to the sircumstances stated by the defendant’s counsel, a bond is in some instances substituted in the place of a deposit 5 a security instead of satisfation; The effect of an injunction in both cases is the same ; but in the latter, after a dissolution an execution de novo may issue, for the defendant absolutely discharged by a seizure where he is passive, and does no act to obstruct the coneequences of a seizure s but where, by his own act and at his own instance, the goods are released upon an allegation made by himself, that he is not chargeable,it is no hardship upon him when upon further scrutiny it turns out that his allegation is not true : If he is subjected by a new writ, and the constant practice in this state hath been in such cases to issue a new Ji.ja. after a dissolution, and nota venditioni exponas or distringas against the sheriff who seized.

Verdict for the defendant.

Note. — This ease happened some years ago in the district of Halifax The defendant whose name I think was Robinson, was taken ac-I imprisoned upon a ca. sa. and then obtained an injunction and was dischargad ; and though the plaint’ff’s debt became despetste, and was actually lost by the discharge, as well es I recollect, 00 advice was given to sue the sheriff. — This case *86happened in the district of Salisbury, eight or nine years ago ;; a defendants goods were taken in exetutioc, then an injunciion issued ; the goods were released,.and the defendant immediately removed himsslf and his effects to Georgia, and no one advised the suing the sheriff; then the. injunction was dissolved, and no nroperty to be found, About six or seven years ago at Salisbury, this case happened i. The sheriff of Rockingham (Mr Joyce* as well as E remember) was indicted, because having take® the defendant in execution, who afterwards exhibited a bill and, procured a Judge’s fiat for an injunction, and shewed that to the-sheriff o-- the day of sale, not having time to go to the office of the clerk and master ; the sheriff, supposing the fiat not suffici». ervt, had proceeded to sell ; and for tiiis conduct, both he andi the plaintiff were convicted of trespass aad fined ; two judges being present, as well as I remember. Numberless cases have occurred; where the goods have been re-delivered, and where afterwards-, new executions issued t were all such sales illegal ?• And the plaintiffs liable to be sued or to make restitution ? And must the sheriffs in all such cases be resorted to ? Or are they still liable-*n all cases to be resorted to where the goods have been re-de~. livened, and afterwards none to be found ? Notwithstanding the-general opinion hath been hitherto, that they did but their duty-in making re-delivery and were no ways responsible afterwards ?'• If so, the. law suits to arise from this source are innumerable and the effects incalculable.

Note. — It was attempted to defend the sheriff on another ground ; namely, that the bill-of costs annexed to the execution, contained some abbreviated words, and that therefore he ought--, not to-have executed the writ: The words of If84, ch. 7, sec. 8* are — and to the said execution shall be annexed a copy of the. feilL of costs, of the fees on which such execution shall issue* wrote in words at length without any abbreviation whatsoever and all executions, issuing without the copy of such bill of costs annexed, shall be deemed illegal, and no sheriff shall serve or-execute the same.

Per curiam, That clause relates to executions for costs, not to those or such parts of those as are for the judgments ; and in-the present case, though theve be an abbreviation, that will not justify the sheriff in not levying the principal, however it may operate as to the costs.