No rule is better settled, or more uniformly acquiesced in, than that a levy of personal property, sufficient in value to discharge the execution, is a satisfaction of the judgment. When the officer has seized property of the defendant, on execution, it is thereby appropriated by the law to its payment, and the officer is bound for its custody, and that it shall answer for the debt. To accomplish this, he has the power1 to remove the property and retain the possession, or place it in the hands of a custodian, unless the defendant shall execute a satisfactory delivery bond. And when the plaintiff has elected and made his levy, he has no power to release the levy and to have other property seized, unless it be with the consent of the defendant in execution. The law will not permit the creditor to use his judgment for purposes of annoyance, and the oppression of his debtor; and to permit him at his option, and as frequently as he may choose, to release one levy and make another, would confer a power which might be greatly abused. Nor has the officer making the levy, any power, on his own mere motion, to release a levy and seize other property. It is true, if such a release were made by agreement with the debtor, he would be estopped to complain, and would have no right to repudiate the agreement. Or if he were to possess himself of the property after the levy was made, and prevent the officer from applying it to the satisfaction of the execution, the officer would have the right to release the levy, and seize other property in its stead. Where a levy has been made, unless released by agreement of defendant, it can only be removed by a sale, or by an order of the court issuing the execution.
In this case, it is urged, that as the property was not removed from the defendant’s custody by the officer, the levy was incomplete. The officer indorsed the levy on the execution, and nothing appears in the record to show that the levy was not legal and binding in every particular ; and the evidence abundantly shows that it would have sold at public auction for enough to satisfy the execution. The sheriff does not intimate that he left any act, necessary to a complete levy, unperformed. He had the undoubted right, as the defendant in execution refused to give a delivery bond, to select the custodian of the property, and his having entrusted it to the defendant for safe custody, could in nowise affect the validity of the levy. The sheriff was liable for its production to answer the debt, or its return to the defendant, and he had, for that purpose, the right to entrust it to the defendant, or any one he might choose. If he saw proper to place it in the hands of the defendant, instead of any other bailee, the plaintiff had no right to complain. If it was not forthcoming, the sheriff would be liable to him for its loss, to the extent of its value, not exceeding the amount of his judgment.
The question is then presented, whether the evidence shows that this levy was released with the consent of the defendant. Smith, the attorney, testifies, that Hughes requested him to have the personal property released from this levy, which he did. On the other hand, Hughes positively denies that he ever made such a request, or ever at any time consented that the levy should be released. In this direct contradiction in the evidence, we may conclude that the fact is left in such doubt, that it is equally balanced ; and as the plaintiff is required to establish the fact of consent, by a preponderance of evidence, he has failed to maintain his issue. This is clearly the rule, when there is not a preponderance of evidence to establish a fact. And when two witnesses, of equal credit, make contradictory, positive statements, with equal opportunity of knowing the facts about which they testify, in the absence of a knowledge of their manner of testifying on the stand, we may well say there is no preponderance, and that the fact is not proved.
But in this case, three witnesses testify to an acquaintance with Hughes’ character for many years, and that they would not hesitate to believe him under oath, or otherwise. Ia view of all these circumstances, we are unable to say that the preponderance of the evidence establishes the consent of Hughes to the release of the levy. And failing in this proof, the presumption is that the release was unauthorized, and the subsequent levy was irregular, and was properly set aside and vacated by the court.
The judgment of the court below is aErmed.
Judgment affirmed.