18, 1874, which was sometime after the rights under which Charles Ferguson claims accrued, if they accrued at all. None of the other executions could have been lawfully levied or enforced, unless by something done before they were returnable. The validity, therefore, of the alleged levies for any purpose depended on whether they were made during the life of the writs. It becomes, therefore, a vital question whether these levies were made as assumed, and whether, if there was evidence on the subject, the court could properly take that fact for granted. There was, as the court says, conflicting evidence as to who was in possession of the goods in August and up to the levy of the attachment. executions was issued and levied during this was made a ground of recovery in this action. testimony, shows that Quackenbush was in the levied the Hensien attachment, and that witness informed him about having levied under the executions, and that the matter must be settled up or he would take possession under the levies. This Quackenbush denies, and Henry does not in his testimony indicate that any action was had under the latest execution, which would have amounted to a levy if the property had not been already under levy. The early levies were evidently the ground of all his right. One of these interval, and Henry, in his store before he Upon those he was asked to give a full statement of what he did, and it also appears to some extent affirmatively what he omitted. The statement of the levies in the bill of exceptions refers only to the stock of hardware, although Henry says he informed Quackenbush, in August, that he also claimed what was in the warehouse. The safe is not fncluded in any of the descriptions, and there is nothing to show on the record that any of the farm machinery or implements were levied on. The only acts that Henry testifies to, in making the execution levies, are thus mentioned: "I made the levy and indorsed the levy on the execution at the time, and notified Parmlee." And, in speaking of the attachment levy, which was regular, and under which he took actual possession, he says: "I had the property appraised. I had never had it appraised before that. I did not set apart any part of that property as exempt property. I cannot tell why I did not." It appears that no change was made, and no interruption was had in the business during Parmlee's possession, which continued from February to August, and that Henry was willing to let Quackenbush continue there if matters were settled up; and when he made his first levy Parmlee, as he testifies, said: "I can pay these matters up if you will give me time." It may be open to inference, at least, that Henry did not give Parmlee any notice which was designed to stop the ordinary business and sales. Whatever may have been the real facts of the case, the judge could not rightly decide, as a matter of fact, that there was a levy of any kind, unless an indorsement on the writ and notice of the claim of levy would by themselves, and in spite of other facts, make it complete; and even if this were so, inasmuch as the entire property replevied by Quackenbush and taken under the attachment was not covered by the former levies, the instruction, which made no reference to the extent of the property, was misleading. There is nothing to show whether the safe and the farm implements and machinery would not have made a reduction which would have changed the verdict. But the rule laid down concerning levies was too loose. The English rule is rather more strict than the general American rule, and requires a continued and actual possession, the voluntary relinquishment of which is an abandonment of the levy. The supreme court of New York, in Beekman v. Lansing, 3 Wend. 446, lays down this rule, which has not, we think, been departed from since, although there are dicta in some later cases which, standing alone, might favor a more careless practice. After mentioning the English doctrine, Marcy, J., proceeds: "We are not disposed to go this length, but are of opinion that the officer should enter upon the premises where the goods of the defendant are, and take actual possession of them, if they are such of which possession may be taken. The goods should be brought within his view, and subject to his control, (Haggerty v. Wilder, 16 John. 288;) and it is proper, also, if not necessary, that an inventory should be taken of them. The officer should assert his title to the goods by virtue of the execution; and we are inclined to think that his acts, as to the asserting of his rights and the divesting of the possession of the defendant, should be of such a character as would subject him to an action as a trespasser; but for the protection of the execution they should be public, open and unequivocal, and nothing should be done by him to cast concealment over the transaction. But it is not necessary that an assistant of the officer should be left in possession of the goods, or that the goods should be removed. They may be left in the custody of the defendant at the risk of the plaintiff, or of the sheriff, or on obtaining, as is customary, a receipt for their delivery on demand. Page 450, 451. In Camp v. Chamberlain, 5 Denio, 198, which is cited as a correct exposition in Barker v. Binninger, 14 N. Y. 270, it is said: "In order to constitute a valid levy as to third persons, the goods must not only be within the view of the officer, but must be subjected to his control. He must take 'actual possession,' which, although the goods are present, can only be done by manual acts, or by an oral assertion that a levy is acquiesced in by those who are present and interested in the question." According to the most liberal rule we have been able to discover, the levy must be so made that it identifies or gives means of identifying what is levied on, so that any property levied on may be made chargeable to the officer, and property not levied on cannot be subsequently claimed. It must be seized manually, or by assertion of control that may be made effectual, if necessary, and this to bring and keep it within the dominion of the law for sale on execution, if needed, and for no other purpose. An intention to allow it to be disposed of by the execution debtor as his own, is not the intention required. It is also a matter worthy of consideration whether the proceedings required by our statutes to set aside exempt property do not require something more to identify the property covered by the levy than where a seizure can be made of a mass of property not subject to reduction in that way. While we cannot determine-as we think the court below could not-whether there was here a valid levy at all, we think the record left that question as one very seriously open to dispute; and the extent of property levied on was still further in doubt. As to any property not under levy the rights of the parties to deal with it are very different from what they might be otherwise. We therefore abstain from discussing the rules of fraud, and capacity to deal with the property in dispute, which in some respects and in some aspects of the case may be open to criticism. Until the validity and extent of the levies are disposed of the remaining questions are variable. The judgment must be reversed, with costs, and a new trial granted. (The other justices concurred.) WILLIAM MCLAUGHLIN vs. EMIL LANGE and others. Filed October 30, 1879. Question of fact he'd improperly taken from the jury.-[Ed. Error to Muskegon. Smith, Nims, Hoyt & Erwin, for plaintiff in error. CAMPBELL, C. J. The controversy in this case arose concerning the validity against creditors of a sale of certain horses and teams by an uncle to his nephews. They lived together on the same premises, and the change of possession which is necessary under the statute to avoid a disputable presumption of fraud would be shown by different evidence than under other circumstances. The testimony was very positive in favor of such a change, but there were suspicious facts bearing on it. From the condensed form in which it is very properly set forth in the bill of exceptions, it is not clear there was not further testimony, while on the other hand there were circumstances which might possibly be urged to the jury as bearing on the general probability of the story of the witnesses. Under these circumstances we think the court had no right to take the question from the jury. The case is within Molitor v. Robinson, 40 Mich. 200. Judgment must be reversed, with costs, and a new trial granted. (The other justices concurred.) JOSIAH B. TAYLOR and others, vs. CHRISTOPHER DANSBY. Filed October 20, 1879. T. and S. gave D. a promissory note on settlement of a bastardy case against S., suit having been brought thereon and judgment rendered in D.'s favor in justice court, appeal was taken, H. being surety on the appeal bond. On trial in the circuit court defendants showed S. an infant, whereupon judgment was rendered against T. alone. and then against H. as surety on appeal. Held, such judgment was proper, as was certain evidence offered showing a sufficient consideration for said note.-[ED. Error to Ingham. H. F. Higgins, for plaintiff in error. A. D. Cruikshank and E. D. Lewis, for defendants in error. CAMPBELL, C. J. Dansby sued Taylor and one Frank Smith on a promissory note, given in settlement of a bastardy case in which Smith was the implicated party. Hall is surety on the appeal bond given to remove the judgment rendered before a justice, against Taylor and Smith, into the circuit court of Ingham county on appeal. On the trial of the appeal, evidence was put in on behalf of Taylor and Smith showing Smith to be a minor. Thereupon plaintiff below was granted leave to discontinue as against the infant, and obtained judgment against Taylor, and then, under the statute, against the surety on the appeal bond. It is now claimed there was no authority for such a discontinuance in the appellate court, and that Hall was thereby discharged. Inasmuch as the infancy of Smith was shown by the defendants themselves, plaintiff had a right to accept it as a fact and act accordingly. The note was valid against Taylor, who might be treated in such a case as sole maker, the infant's liability being out of the way. Cruickshank v. Gordon, 2 Hill, 333; Reading v. Beardsley, 41 Mich. 123. . The fact that the case was before the circuit court by appeal and not as an original action makes no difference under our practice. This was decided in Chandler v. Lawrence, 3 Mich. 261, and, being within the ordinary powers of the circuit court on appeal, the resort to it is one of the incidents of the controversy covered by the appeal bond. An agreement in writing appeared which was signed by Dansby and one Hill, whereby they agreed to settle and pay all damages arising from the complaint against Smith in regard to the young woman referred to, and that no further danger should accrue against Smith, and that in case of further trouble they would pay all damages. On the trial Dansby was allowed, under objection, to show a further consideration for the note. The objection was that the whole agreement must be regarded as contained in the writing. But there is nothing in the writing to indicate this. It is an independent agreement, in no way indicating what the whole dealings were. It does not refer to the note at all, and does not raise any presumption that it covers any entire transaction. The testimony was clearly admissible. We can see no objection to the proof offered that the injured woman agreed to be satisfied with the arrangement made by Dansby. It was no more than proof of the execution of the written agreement, whereby Smith was to be protected against further liability. As the agreement of Dansby covered all liability of Smith, |