not help the plaintiff The judge doubtless granted it without looking to see whether it was a bill or case. That distinction was not material to the question of staying proceedings.

I have felt a desire to relieve the plaintiff if possible; for the point we decided on the case is of great importance as carrying out our modern course of decision on jurisdictional questions, by which we have extended a liberal protection to inferior magistrates and officers acting under their warrants. 21 Wendell, 552. Perhaps the decision there has gone as far, if not further, than any which has preceded it. By further, I mean it has applied the principle on which we have acted in the class of questions mentioned, to a combination of circumstances which were new in their details, and to which the application of the principle may not be so obvious as in most cases. The case was, therefore, well calculated to test the principle both as to its existence and application, by an appeal to the court of dernier resort.

I am satisfied, however, for the reasons mentioned, that I cannot put the cause in its way to that court, consistently either with the statute or the principles of sound practice.

Motion denied.

WALTERS & FARLEY US. SYKES & HARMAN.

A fi. fa, sent to the sheriff, and received by him precious to the signing and filing the record, is not irregularly issued, if the sheriff be directed to endorse it as received of a subsequent day, and on that day the record be actually signed and filed, and a levy be not made until such proceedings are had.

The sheriff pro hac vice is the special agent of the plaintiff.

MOTION to set aside a writ of fi. fa. for irregularity. A deputy sheriff of Oswego received the writ, with a letter from the plaintiffs' attorneys, directing him to endorse it as received January 6, 1840, at 9 A. M. The letter was dated the 3d January, and mailed before judgment was per

Walters v. Sykes.

fected. It enclosed the writ, with the intention to perfect the judgment at the time when the sheriff' was directed to endorse the writ as received. It came to the hands of the deputy on the fourth, but he endorsed it as received on the sixth day of January, and on the latter day after the record was signed and filed, made the levy, as the attorneys had directed should be done.

A. Taber, for the motion, cited 9 Johns. R. 385, n. a. ; 5 Wendell, 109; Graham's Pr. 363; 2 R. S. 284, §11; id. 288, $10.

B. Davis Noxon, contra.

By the Court, COWEN, J. An unqualified mailing of the writ and its receipt by the deputy sheriff would undoudedly have been an issuing of it, and that would have been irregular until the judgment had been perfected. Marvin v. Herrick, 5 Wendell, 109. But he was directed by the plaintiffs' attorney to endorse it as received at a time after the record was in fact filed, and he did so-doing no act under it till after the judgment was perfect. I do not see why the delivery may not as well be thus qualified and rendered finally effectual, as if it had been sent to a neighbor of the sheriff, to hold as agent for the plaintiffs' attorneys. The sheriff may be made their special agent as well as any other person, and cannot be said to hold the writ as sheriff till the time expired. In that sense, the writ was not issued till the proper time. It may be said to have lain with him as a private agent till that period; for he was, in this respect, under the control of the plaintiffs' attorneys. The delivery of a writ is as much an act in pais as the delivery of personal property, which may always be qualified so as to make the receiver a mere bailee or agent up to a certain time, and the absolute owner afterwards. A man sends his agent a general power to sell his horse, but in the letter enclosing it directs him to sell on a certain day; the general agency does not take effect till the day; for both must be considered to operate as one instrument, the special qualifying the general power.

Walters v. Sykes.

There are several direct authorities that the attorney issuing any writ has power to qualify its general effect by whatever special directions he may think proper to give. Where he directs a special deputy to be appointed, this has been regarded as a material qualification of the sheriff's responsibility. Ford v. Leche, 6 Adol. & Ellis, 699. Lord Denman, Ch. J. said, the plaintiff's letter in that case amounted to this: "I make the sheriff my agent to issue warrants to two officers whom I appoint, and to whom I will give directions." That, he says, supersedes the authority of the sheriff, and makes the officers, not him, the persons who are to execute the process. Littledale, J. said the sheriff's duty was suspended for a time. Patterson, J. said the sheriff had no choice. In Hamilton v. Dalziel, 2 Black. R. 952, Graham, the plaintiff's attorney, sent a capias to Littledale, the under sheriff, with power to compromise; and it was held, that the high sheriff was not accountable for any thing the under sheriff did under the writ. The latter made a special bailiff, one Clark, who arrested the defendant, and he escaped. The court held the sheriff was not even bound to return the writ. They said Littledale acted as the agent of Graham, and not in the capacity of under sheriff; that Clark was therefore a special bailiff, nominated by the plaintiff's agent. Several other cases were cited in Ford v. Leche to the same effect, and there are some cases in this court to the like effect. Gorham v.

Gale, 6 Cowen, 467, note (a); 7 id. 739, S. C. This was the case of an execution, and it was held that the attorney had power under his general warrant to control the sheriff and make a deputy his private agent.

In short, the result of the cases seems to be, that the attorney for the party in whose favor process issues, may give such directions to the sheriff as will not only excuse him from his general duty, but bind him. The attorney may make him pro tanto a special agent, by restricting his general power in any way which shall not amount to an abuse of the process, although he cannot enlarge the power. Both the process and the law which confers authority under it are for the benefit of the party; and it is a general rule

Godfrey v. Gibbons.

that a man may dispense with an entire law which is intended for his aid or protection. It follows that he may qualify it to a greater or less extent, according to his discretion. None of the cases cited by the counsel for the defendants are incompatible with this doctrine.

Nor is the sending out an execution conditionally, forbidden by the statute. 2 R. S. 284, § 11. Id. 288, § 10. By the 11th section cited, "no judgment shall be deemed valid, so as to authorize any proceedings thereon, until the record thereof shall have been signed and filed; and by the 10th section cited, the officer is bound to endorse the hour of the day when he receives any execution. By regarding the deputy as the private agent of the attorneys, up to the hour when the record was filed, the case is the same in legal effect, as if the writ had been made out provisionally, but suffered to lay in the attorneys' office. It was not delivered out, nor endorsed, till the hour appointed by the attorneys; therefore, it was not a proceeding in the cause till that time.

I think the attorneys proceeded regularly, and that the motion must therefore be denied.

GODFREY US. E. & J. GIBBONS, impleaded with Hart, Wis wall and Cushman.

In a judgment against several defendants, it is competent to the plaintiff's attorney to direct the sheriff to whom the fi. fa. is delivered, to levy on the property of all or either of the defendants; and, it seems, the court will not look into the equities as between the defendants to control such direction.

Although, ordinarily, where a levy has been made on property by virtue of au execution to an amount sufficient to satisfy the debt the plaintiff is not permitted to withdraw the process, and make a levy upon other property; yet the court will not set aside a second execution, where one of several defendants has induced the sheriff to disregard the directions of the plaintiff's attorney and to make a levy under the first execution, threatening to involve the plaintiff in litigation.

MOTION to set aside a fi. fa. or for a rule to enter satisfaction on the judgment record. The plaintiff's attorney VOL. XXII.

72

Godfrey v. Gibbons.

had issued a fi. fa. directing the sheriff to levy the money of the property of the defendants, E. & J. Gibbons; but he, under the advice of E. & J. Gibbons, refused to do so, and levied on the interest of the defendant Wiswall in a ferry boat, owned by him jointly with various other persons, not defendants in this suit, who threatened to institute proceedings to protect their property. The plaintiff's attorney thereupon withdrew the first fi. fa. and issued another, which was levied according to his direction on the property of one of the Gibbonses. Affidavits were read showing that as between them and the other defendants, they ought to pay the debt. But this depended on the state of accounts between them.

P. Cagger, for the motion.

E. Pearson, contra.

By the Court, COWEN, J. We have nothing to do with the state of accounts between the defendants. The plaintiff, not the defendants, or any of them, had a perfect right to direct a levy on the joint or several property of the dendants or any of them, the judgment being against all. A alid levy on the boat would have been, it is true, prima facie a satisfaction of the debt, especially if Wiswall's interest in the boat had been of sufficient value to satisfy the fi. fa. But the levy was void; at least it might be so regarded by the plaintiff; for the sheriff was bound by the direction of the attorney to levy on the property of the Gibbonses only. I have just now had occasion to consider the extent of the attorney's power over process, in Walters v. Sykes; and I find that the sheriff may, by his direction, be restrained and limited as a special agent to any act which is within his general authority under the writ; and the case now under consideration shews very forcibly that this should be so. By colluding with the Gibbonses to evade the plaintiff's direction, the sheriff was in the way not only of enlarging the delay of collection, which had already been considerable; but of drawing the plaintiff into a litigation con