this at his peril, in entering the house of a stranger, unless he actually finds therein goods of the debtor which are liable to be taken on execution. If the party imprison his deputies, or he makes a seizure in a house, he may break open the outer door to get either out of the house. Goods may be taken through the windows if open; and a seizure of a part of the goods in a house, in the name of the whole, is a good seizure of all. But the absolute property of the goods to be taken must be in the debtor; and therefore if the officer takes the goods of a stranger, though the plaintiff assures him they are the debtor's, he is a trespasser, for he is obliged at his peril to take notice whose the goods are. If, when he comes to seize property, he breaks down a fence when he might have gone through the gate, he is guilty of trespass, but not if he is threatened by the owner, that if he enters the gate, he will take his life. But in a writ of seisin, or habere facias possessionem in ejectment, the officer may justify breaking open the outer door if he be denied entrance, for the intent of the writ being to give the party full and actual possession, the officer must consequently have all the power necessary for this end; besides, after judgment, the law does not regard the house as belonging to the party in possession, but to the party who has recovered it. An officer, when necessary, should summon the power of the county to aid him in the execution of final process.3 § 156. INDORSING TIME OF RECEIPT UPON THE WRIT. — It is necessary in many states, under the statute of frauds, that the officer indorse upon an execution the exact time of its delivery to him, the hour and the day, and it is conclusive evidence against him that it was in his hands for service at that time. It is not required in Illinois, and is regarded as merely directory in Alabama.1 If neglected, and it afterwards becomes important to protect the lien of the creditor, it may be proven. by the same evidence that the creditor might prove it by against the officer.2 § 157. WHEN AN EXECUTION CAN be set off. WHEN NOT. - Where an officer has in his hands at the same time two executions belonging to the respective parties, he is empowered to set off one execution against the other; but he cannot set off the costs due to the attorney in the suit, for which such attorney has a lien.1 Where an officer has cross-executions put into his hands, and he is requested to set off one against the other, he may require an indemnity; but it is his duty to make the set-off, otherwise he will become personally liable. It cannot be done in Alabama. Or where stay of execution has been ordered, one judgment cannot be set off against another; nor where an appeal from one of them is still pending and undetermined.8 To permit a set-off under such circumstances would be a violation of the rule, that both causes of action must be mutual subjects of set-off against each other, and be certain and determinate. The order to be entered must be, that the judgment be absolutely set off, not merely in case one be not reversed on appeal, which it is manifest could not be done. Having shown how final process is to be executed, by whom, when, &c., we now come to the execution of the writ after it comes to the hands of the proper officer, and the time of its receipt has been indorsed by him on the writ; which proceeding is known as the LEVY, and will be considered in another chapter. Hester v. Keith, 1 Ala. 316. Fletcher v. Pratt, 4 Vt. 182. Hester v. Keith, 1 Ala. 316. 3 Culver v. Pearl, I Tyler, 12. Dunklee v. Locke, 13 Mass. 525. McGlinchy v. Hall, 58 Me. 152. Leathers v. Carr, 24 Me. 351. Brazeal v. Smith, 5 Ala. 206. 7 Best v. Lawson, 1 Miles, 11. • De Figaniere v. Young, 2 Rob. 670. CHAPTER VIII. OF THE LEVY ON PERSONAL PROPERTY. - What a Levy is.-Duty of Officer in Regard to Levy. -- Executions against Principal and Surety, several Defendants. -How a Levy is made. What constitutes a Valid Levy. What is Evidence of a Levy.— Right of Debtor to designate Property to be taken. - What is sufficient Levy as against Debtors, Third Persons. When a Levy will be sustained. - What will avoid it. What is an Invalid Levy.—What Levies are void. - Setting aside Levies. - Excessive Levies; what arc, are not. One Levy only allowed. When an Additional Levy may be made. Effect of a Levy: vests Property in Officer; Custody of Law. When it cnures to other Writs. Effect of a Release after Levy. - Effect of a Levy as a Satisfaction of the Judgment. - When it is, when not. Of the Care of Property after Levy. - $158. Or the various matters connected with the issue and execution of final process there is no one step in the proceeding of more or greater importance than the levy. It is important not only as to the quantity of property levied upon in order to satisfy the debt, but to the plaintiff in the execution as to the responsibility of the officer to the amount of the execution, to the debtor or defendant for the payment and satisfaction of his debt, and to third persons or strangers to the action in regard to property claimed or owned by them, and in the care and custody of property after levy. As to what may be levied upon under and by virtue of an execution is a matter of purely statutory regulation in each state. But as to the levy, what constitutes one, how made, the validity, &c., are questions of law that have been adjudicated by the courts of last resort in England and in almost every state in the Union. To levy is to collect by execution. Executions are usually indorsed with a direction to the officer to levy so much money; to take or seize in execution; to apply an execution to property; to subject property to the operation of an execution; a taking or seizure of property under execution by the officer to whom the writ is directed; a taking of personal property in execution as preliminary to a sale; the application of a writ of execution to the property of the party named in the writ. A levy is the act of taking possession of the property of a person condemned by the judgment of a competent tribunal to pay a certain sum of money, by a sheriff, constable, or other officer lawfully authorized thereto by virtue of an execution for the purpose of having such property sold according to law to satisfy the judgment. The seizure is complete as soon as the goods are within the power of the officer. It is the seizing and reducing property to possession.1 A levy upon personal property is the act of taking possession of it, or seizing it; or where the officer takes control of the property of the judgment debtor by virtue of an execution against him, for the purpose of selling the same and converting it into money; and is one of the steps towards fulfilling the mandate of the court from whence the execution issued. By the taking of such property the lien of the execution becomes perfect, and it is beyond the reach of other process while so held. The terms levy and sale, when used with reference to judicial proceedings in civil cases, are equivalent to the word execution.2 § 159. OF THE DUTY OF THE OFFICER IN REGARD TO THE LEVY. Upon the delivery of an execution to an officer, he should examine the writ, and ascertain whether it is regular on its face, and that the party against whom it issues is correctly named in the writ. While he may know the party for whom it is intended, and takes the property of the debtor, still he may be liable in an action against him by seizing property of a party not named in the writ. If the writ is regular, and 1 Leach v. Pine, 41 Ill. 66. Comms v. Wan-zap-pe-che, 3 Kans. 366. Farnham v. Hildreth, 22 Barb. 277. the party rightly named in it, it is the duty of the officer, in case such party fails to pay the amount which the officer is directed to collect on the execution, to proceed to execute the writ according to its command, and for this purpose to make a levy upon the goods and chattels of such debtor, sufficient to pay the amount which he is directed to collect upon the execution, with his fees, interest, and costs, if so much property of the debtor can be found within his county. But he cannot levy on property outside of his county. There is no restriction upon an officer making a levy by virtue of an execution as to the amount of property he shall take, nor is he required to levy upon all the property at the same time. An additional levy may be made, if necessary, without waiting for the sale. His dutics being purely ministerial, he should, when a writ is placed in his hands, proceed to make the levy, leaving the debtor to assert his rights, if he has any." He is not bound to regard the equities subsisting among the debtors. A bare suspicion that there might be some difficulty with regard to the title of property pointed out to him does not justify him. in refusing to levy. His neglect to levy is at his own peril. If the debtor is absent, and cannot be notified, he must levy on all property not specifically exempt, and permit the debtor to make his selection afterwards. In many states a demand of payment is necessary before a levy can be made; it is not necessary in others. All that is required of the officer in the execution of process is, that he shall in good faith make a rea Rogers v. Silas, 42 Ga. 54. Patton v. Hammer, 28 Ala. 618. Rutland v. Pinge, 24 Vt. 181. 7 Marshall v. Simpson, 13 La. 437. Peet v. Simpson, 13 La. 437. Kellogg v. Monroe, 9 John. 300. People v. Palmer, 46 Ill. 398. Weld v. Bartlett, 10 Mass. 474. Young v. Hosmer, 11 Mass. 89. Patterson v. Westervelt, 17 Wend. 543. People v. Palmer, 46 Ill. 398. |