It will admit of no doubt that the execution which issued against Alley, bound all his property from its teste, which was in March 1820; and notwithstanding a bona Jide sale of any part of it after that period to the plaintiff, it was still liable to he taken in execution. But the plaintiff alleges, that a levy having been made of the negroes, and property belonging to Alley, of sufficient value to pay the balance of the debt, the two negroes now sued for, were discharged from the lien, and became a fair subject of private sale. The inference would he correctly drawn, if a levy on sufficient property liad in fact been made; but it plainly-was not made. It does not appear, that the coroner ever saw the property, or might have seen it if he had desired. The delivery of a list merely, without some act on the part of the coroner amounting to an actual seizure, or sufficient at least to vest a special property in him, so as to *295maintain trover against one wlio converted them before a sale, cannot be deemed sufficient.- Had the property been present when the list was delivered, and the coroner liad signified that he held it bound to answer the execution, and there was no opposition to his possessing himself of i+, had he so desired, it would have, amounted to a levy. For it has never been understood that actual touching the property was necessary, or that it must be remov ed out of the possession of defendant.
The law allows the sheriff to take a bond for its forthcoming, and if he think proper to incur the risk of leaving the property with the debtor without a bond, he is at liberty to do so. The coroner himself, by not returning this levy, seems not to have considered it as one; and upon the whole there is no reason to disturb the verdict.
I think the judgment given in the Superior Court was a correct one. It is not stated in the case whether the alias fi. fa. bore teste before the purchase made by the plaintiff or not; hut the alias was a continuance of the first f. fa. and no position is better founded than tiiis, that an execution binds the property of the defendant before it is levied, so as that no sale or disposition made of it by him is valid against such execution. It is also true, that if the sheriff levies upon property sufficient to satisfy the debt, that property must be accounted for, before other property of the defendant is liable. But in this case, the negroes which the defendant gave the coroner a list of, were not levied upon by him, or taken into his possession; giving such teste was not a levy. I therefore think judgment should he given for the defendant.
Henderson, Judge, was of this opinion also.