Person County NcArchives Court.....William Mitchell, John Douglas V. 1819
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 30, 2009, 10:20 am

Source: Nc Reports
Written: 1819

John Douglas v. William Mitchell

From Person

May Term 1819

The Plaintiff being a Constable, levied an execution on the Defendant's Horse. 
It was agreed between them, that Defendant should ride the horse home, and the 
Plaintiff wait for the money. After the Defendant took possession of the 
horse, Plaintiff seized him and claimed to hold him under the execution. 
Defendant by violence disengaged the horse from the Plaintiff and rode him 
off. Plaintiff brought trover for the horse, and he is entitled to recover; for

His agreement with the Defendant is a mere voluntary courtesy, not binding on 
him. The execution remained unsatisfied, and its efficacy unimpaired, and 
justified the Plaintiff to re-seize the horse. If, therefore, it be conceded, 
that the first levy of the execution was discharged by the agreement, the 
second seizure re-vested the property in the Plaintiff.

This was an action of trover for a horse. The Plaintiff being one of the 
Constables of Person County, had in his bauds a writ of fieri facius against, 
the property of the Defendent, which he levied on the horse. After the levy, 
the Defendant requested to be permitted to retain the possession of the horse, 
and it was agreed between him and the Plaintiff, that the plaintiff should 
call the next day at his house, and receive the money due on the execution; 
and if the Defendant could not then pay it, the Plaintiff would wait two or 
three weeks, and the Defendant might take the horse and ride him home. The 
Defendant then delivered the horse to a boy, who was holding the bridle, when 
the Defendant said, he would ride the horse home, and went towards the horse 
for that purpose. The Plaintiff followed, and taking hold of the bridle, 
claimed to retain the horse by virtue of the execution, and requested the 
Defendant to surrender him. The Defendant refused, insisting on the agreement, 
and threatening violence to the Plaintiff if he did not give up the bridle. 
The Plaintiff declared that he was doing his duty us enjoined by the 
execution, and that he would not let the horse go out of his possession. The 
Defendant drew a sword, and giving the plaintiff a stroke with it, disengaged 
his horse and rode him off.

The Counsel for the Defendant insisted, and requested the Court so to instruct 
the Jury, that the agreement operated to discharge the levy, and re-vest the 
property of the horse in the Defendant, and that the Plaintiff could not re-
seize the horse until the agreement expired. The Court refused so to instruct 
the Jury, saying that the agreement was not obligatory upon the Plaintiff as a 
contract, for want of a consideration. The Plaintiff might, at his own risk, 
have suffered the horse to remain with the Defendant; but then the Defendant's 
possession would have been upon the plaintiff's license, and the Plaintiff 
might, at any time, deprive him of it. That besides this view of the case, the 
Plaintiff might, after the agreement, make a second seizure, and, having done 
so, that vested the property in him, and entitled him to recover in this 
action, although it should be conceded that the agreement discharged the first 
seizure. There was a verdict for the Plaintiff, and a rule for a new trial 
being granted to the Defendant, and on argument, discharged, the Defendant 
appealed.

Henderson, Judge: It may be conceded, without prejudice to the Plaintiffs 
right of recovery, that the first levy was raised or discharged by the 
agreement stated in the case; yet the Plaintiff is entitled to recover on the 
second seizure or levy. For that which is called a raising of the first levy, 
was a mere unexecuted voluntary courtesy, which might, at any time, be revoked 
at the pleasure of the officer. But suppose the officer had actually restored 
possession of the horse, and had agreed to wait two or three, weeks, or for 
any other period, the execution was not thereby satisfied, or its efficacy 
impaired; which is the true criterion whereby any acts under it are to be 
tested: and it remained in full force and vigour, and not only justified the 
making of the seizure, but required it. 

Upon every principle, the Plaintiff is entitled to recover.

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