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 licence, 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 *Page 185 rule for a new trial being granted to the Defendant, and, on argument, discharged, the Defendant appealed. It may be conceded, without prejudice to the Plaintiff's 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. (241)