The writ offi. fa. in favor of the plaintiff and against Webb, was delivered to the defendant on the thirteenth of July, 1844, he then being marshal of the city of Rochester. No levy was made under this writ, by the defendant, at any time, and ultimately he made return that he could find no goods or chattels, &c. whereof to make the amount specified in said execution, or any part thereof, and for making this return, which is alleged to be false, the present action was brought.
When the writ was delivered to the defendant he was told that it was good, as Webb, the defendant therein, had two stores of merchandise in Rochester. The evidence shows he had one store of boots and shoes, in Rochester, worth, as is admitted, some five times the amount of said execution: that he was in possession as owner of these goods, and was offering them for sale in the ordinary way of retail dealers in such articles. There is nothing in the evidence to show that he was not such owner, or to prevent the seizure and sale of these goods on this execution, unless the other two writs of fi. fa. against Webb, mentioned in the bill of exceptions, or one of them, had that effect,
1. One of these writs, that in favor of Burt and others, was received by the sheriff of Monroe on the fifteenth of said July *202two days after the plaintiff’s execution had been placed in the hands of the defendant. It is entirely clear that if the defendant had done his duty, by a prompt service of the execution in his hands, the one subsequently delivered to the sheriff, could not have been in the way of making the amount due to the plaintiff. The defendant cannot set up this execution of the fifteenth of July, or any thing done upon it, to justify or excuse the return made by him.
2. The other of said two executions was in favor of one Howes, and was left at the sheriff’s office on the twentieth of June preceding the delivery of the plaintiff’s execution to the defendant. If any thing was shewn on the trial to justify the return made by the defendant, it must be this writ in favor of Howes, or something done under its authority. But no levy had been made by virtue of this execution before the thirteenth of July, nor, indeed, was it levied at any time, and on the seventeenth of said July it was withdrawn from the hands of the sheriff.
The under-sheriff who held this execution in favor of Howes, testified in a general way, on his direct examination, that he levied it on the boots and shoes in Webb’s store, but on cross-examination he showed that no levy had in fact been made by him. He called at the store with the execution, but it does not appear that he mentioned it to Webb or any one else. No actual seizure of the goods was made, nor was any right to seize them.asserted by act or word. No inventory was made or goods removed, and Webb was left in full and undisturbed possession. It is not stated that the goods were even seen by the officer, although it is probable that some or all of them were under his eye. All he seems to have done was to walk into the store and subsequently make “a memorandum of the levy which he annexed to or placed within the execution.”
. Now, taking all' this to be true, it does not amount to a levy. 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 *203manual acts, or by an oral assertion that a levy is intended and which is acquiesced in by those who are present and interested in the question. A levy cannot rest in a mere undivulged intention to seize property. Something more is required: there must be possessory acts to indicate a levy, or it must be asserted by word of mouth, so that what is thus done by the officer, if not justified by the process in his hands, will make him a trespasser. (Haggerty v. Wilber, 16 John. 287; Beekman v. Lansing, 3 Wend. 446; Butler v. Maynard, 11 id. 548; Westervelt v. Pinckney, 14 id. 123; Ray v. Harcourt, 19 id. 497; Connah v. Hale, 23 id. 466 to 470; Green v. Burke, id. 492 to 496; Watson on Sheriff, 172, 191; Eastman v. Eveleth, 4 Met. 146.)
Even if an actual levy had been made on these boots and shoes, under the Howes execution, still the defendant should have made a levy on the same goods when the plaintiff’s execution was received by him. The goods were then in the actual possession of Webb, who was disposing of them as owner in the ordinary way of a retail dealer, and were therefore prima facie liable to the execution in the defendant’s hands. (Lovich v. Crowder, 8 Barn. & Cres. 132; Frost v. Dougal, 1 Day, 128; Williams v. Lowndes, 1 Hall, 579, 595.) By omitting to make a levy and returning nulla bona, &c. the defendant took upon himself the burden of showing that these goods were not liable to the execution of the plaintiff, and deprived him of the opportunity to indemnify the officer and thus require a sale to be made. But in this case the Howes execution was ultimately withdrawn, and therefore turns out not to have been any obstacle in the way of enforcing the plaintiff’s execution. In no event can an officer be seriously incommoded by making a levy on goods in the possession and use of the person against whom the execution issues. For the security of the officer he may call a jury, and if they find that the goods are not subject to the levy, this will justify a return of nulla bona, unless an ample indemnity is offered. ' Or, application may be made to the court, which will take care and protect the officer in the faithful discharge of his duty, by requiring the real parties in *204interest- to litigate the matter at their own expense. But it is quite unnecessary to discuss what should have been done if the Howes execution had been levied, for no s.uch levy was made.
Nothing is shown, in this case, to justify the return made by the .defendant. He could have found goods and chattels, whereof to malee the required amount, and might have, seized and sold them for that purpose. He was not to take the word of the under-sheriff that he had previously levied on these goods, when in truth no such levy had been made. The fact that the goods were then in the custody of the law, upon a previous levy, might have justified this return,' but the mere assertion of the under-sheriff, which turns out not to have been true, amounts to nothing. As far as appears by this bill of exceptions the return of the defendant is wholly unsupported by the facts of the case; the defendant might have collected the execution, and having, by his own neglect, failed to do so, he is liable to the plaintiff for all damages sustained. The court below erred in holding that a valid "levy had been made on the Howes execution, and that it wag not the defendant’s duty to levy on these goods as they were in the custody of the law, and therefore the return made was justified.
The judgment should be reversed and a venire de novo awarded,
Whittlesey, J.In this case it does not appear to me to be material whether there was or was not a sufficient legal levy made by the sheriff on the execution delivered to him on the 20th day of June, 1844. If there were no levy, the defendant could not be justified in refraining from making a levy, the goods remaining in the hands of the judgment debtor. If there were a legal levy, the goods would he- in the possession of the sheriff and could not be taken by the marshal; or in other words, in such case they would be in the custody of the law the original levy having had that effect, and would be beyond the reach of seizure by the marshal. (Payne v. Drewe, 4 East, 523; Hotchkiss v. Mc Vickar, 12 John. Rep. 403; Show. 173; *205Willes, 136; 1 Cowen’s Tr. 461.) In case of a sufficient levy py the sheriff, it appears that the amount of the execution upon which such first levy was made was sufficient to exhaust the value of the goods levied upon. There would be no remaining interest beyond that out of which the execution delivered to the marshal could be satisfied! As the case would then stand, the marshal would be justified in abstaining from interference with the property after he had been informed by the sheriff that it had been levied upon by him under a prior execution of sufficient amount to exhaust the property.
It is not material to determine upon the sufficiency of the levy under the first execution delivered to the sheriff, because that execution was withdrawn on the 17th of July, by which of course the lien of the levy, if any, was gone. The execu tion in this cause was delivered to the marshal on the 13th oí July, and the second execution was delivered to the sheriff on the 15 th of July. Executions bind goods from the time of delivery to the officer, except in case of bona fide purchasers. A levy indeed was made under the second execution delivered to the sheriff, and none under the execution delivered to the defendant; but notwithstanding this, the last mentioned execution had the preference, provided an actual levy was made upon it before there was a sale under the other execution. This is a provision of the revised statutes made to disentangle some of the legal niceties arising out of previous decisions. (2 R. S. 366, § 14.) As the execution to the sheriff in favor of Burt and others was delivered on the 15t.h of July, and as there must regularly be at least six days’ notice of sale, there could have been no legal sale before the 21st of July. The case does not inform us when the sale under this execution was made, or whether there was any; but we see that none could have taken place prior to the 21st of July. If then the marshal had made a levy on the execution in this cause before that day, such execution would have had a priority over the other by the statutory provision above referred to. The plaintiff offered to prove that on the 20th of July his attorney informed the defendant (the marshal) that the Howes execution had been withdrawn; *206and required him to assert his claim by virtue of the execution in this cause. The testimony was rejected by the court, while it seems to me it was admissible, as it pointed out a mode of reaching the property as against the other execution. So that in this aspect of the case, even if there was a levy by the first execution, the judgment should be reversed.
Judgment reversed.