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Incompetency of Witnesses from Crime.-Estate.

the surveyors in a deposition regularly taken, refer to the certificate as containing what they knew on the subject, it is evidence. United States v. Mitchell, 2 Wash. C. C. R. 478.

1308. The report of a survey made upon an examination of a vessel, for the purpose of ascertaining her situation, after a disaster in a foreign port, is not evidence of the facts stated in it, but only that such survey was made. Watson et al. v. The Insurance Company of North America, 2 Wash. C. C. R. 152.

1309. If the certificate of the survey of a vessel be read, for the purpose of proving that a survey and condemnation of the vessel had taken place, and to prove no other fact stated in it, the party who, for this purpose only, gave it in evidence, will not be thereby prevented from impeaching the credit of the surveyors, whose depositions have been read. Ibid. 480.

16. Incompetency of Witnesses from Crime. 1310. A person who has been convicted in the court of the state of Pennsylvania, of an assault and battery, with intent to murder, and sentenced to fine and imprisonment, is a competent witness. Incompetency, produced by the conviction of a witness, depends on the punishment, and not on the nature of the offence; yet, where an infamous punishment, in the discretion of the court, is not added, there is no disqualification, because it might have been inflicted. Fine and imprisonment is not an infamous punishment. United States v. Brockius, 3 Wash. C. C. R. 99.

1311. An accomplice, separately indicted, is a competent witness in favour of or against a person indicted for a crime. United States v. Henry, 4 Wash. C. C. R. 428.

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ever, to be equally divided among them and their heirs for ever," passes a life estate to A, witth a contingent remainder in fee to his children, he having no children when the will was made. Sisson v. Seabury, 1 Sumner's C. C. R. 235.

6. A devise to A for life, and after her death to her second son B, and to his lawfully begotten children in fee simple for ever; but in case he should die without children lawfully begotten, to to C, the other son of A, and to his lawfully be. gotten children for ever. At the time the will was made, B had no children. Held, that B took an estate in fee tail, with remainder to C, on an indefinite failure of issue of B. Parkman v. Bowdoin, 1 Sumner's C. C. R. 359.

7. By the Massachusetts statutes of descent, reversions and remainders, after life estates, vested by descent in the intestate, passes to his heirs, without any regard to the ancestor from whom he inherited, in the same manner as estates in possession. The common law, in such case, is different, and gives the estate in reversion to the heir of the first purchaser, or reversioner, who is heir at the time when the life estate expires. Cook v. Hammond, 4 Mason's C. C. R. 467.

8. Contingent remainders and executory devises, are transmissible to the heirs of the party to whom they are limited, if he chance to die before the contingency happen. The estate vests in him who is the heir of the devisee, when the contingency happens. Barnitz's Les see v. Casey, 7 Cranch, 456; 2 Cond. Rep. 561.

9. When the commonwealth is seised under an inquest of office of lands, that seisin must be deemed to continue until the title is lawfully parted with; for the commonwealth cannot be disseised. Á resolve of the legislature, releasing such title to another, may be construed as a grant, if necessary to give it effect. Stokes v. Dawes, 4 Mason's C. C. R. 268.

10. A liberty granted in a deed to dig a canal through the grantor's land, does not include, as an incident, the proprietary interest in the soil, when dug up and removed. Lyman v. Arnold, 5 Mason's C. C. R. 195.

2. A. devised an estate to his son, J. S., and 11. An inquest of office, by the attorneyto his male heir (in the singular), and to his heirs general, for lands escheating to the government and assigns for ever; but if it should so be, that by reason of alienage, is evidence of title in all J. S. should depart this life, leaving no male cases; but is not conclusive evidence against heir lawfully begotten of his body as aforesaid, any person who was not tenant at the time of the "then to the testator's grandson, W. O., in fee." inquest, or party, or privy thereto. Such perHeld, that J. S. took an estate tail, with remain-sons may prove that there are lawful heirs, not der over to W. O., in the indefinite issue of J. S. aliens, in esse. Stokes v. Dawes, 4 Mason's C. Osborne v. Shreeve, 3 Mason's C. C. R. 391. C. R. 268.

3. In Vermont, tenants in common may maintain a joint action of ejectment. Hicks v. Rogers, 4 Cranch, 165; 2 Cond. Rep. 69.

4. One tenant in common may oust his cotenant, and hold in severalty; but a silent possession, unaccompanied by an act amounting to an ouster, or giving notice to the co-tenant that the possession is adverse, cannot be construed into an adverse possession. M'Clung v. Ross, 5 Wheat. 116; 4 Cond. Rep. 603.

5. A devise to "A and to his male children, lawfully begotten of his body, and their heirs for

12. Where the estate of a tenant in fee tail male was confiscated to the commonwealth, under the statute of Massachusetts, of 30th of April, 1779, for confiscating the estates of absentees: Held, that the estate of the remainderman was not thereby divested, but that the commonwealth took only by virtue of the confiscation such an estate as the absentee had in the premises. Also, held, that the tenant in possession of the premises under a defective title from the commonwealth, after the expiration of the estate, was entitled to the value of his improve

Estate.-Exchange of Property.

ments. Borland v. Dean, 4 Mason's C C. R.

174.

the sentence unfinished. Mary, the wife, took an estate for life only. Lessee of Page v. Wright, 4 Wash. C. C. R. 194.

13. In Massachusetts, a feme covert may convey her estate by deed joining with her husband, 18. A devise to A., "and if he shall die withas fully as the same could be conveyed in Eng-out an heir before he shall arrive at the age of land by a fine or recovery. Durant v. Ritchie, 4 Mason's C. C. R. 45.

14. A, and B his wife, conveyed her estate to C and his heirs to the use of A and B during their joint lives, and to the use of the survivor in fee simple. Held, that this deed operated as a feoffment, and the uses were well raised out of the seisin of C, and were executed by the statute of uses. Ibid.

twenty-one years, that then all that is to him here bequeathed, to be equally divided amongst his brothers and sisters, or their heirs." A. takes a fee simple, with an executory devise over to his brothers and sisters. Lippet v. Hopkins et al., 1 Gallis. C. C. R. 454.

19. The words, "I give George Gilmer all the estate called Marrowbone, in the county of Henry," carry a fee. Lambert's Lessee v. Paine, Cranch, 97; 1 Cond. Rep. 466.

20. E. being seised of lands in the state of New York, devised the same to his son Joseph, in fee, and other lands to his son Medcef, in fee, and added, "it is my will, and I do order and appoint, that if either of my sons should depart this life without lawful issue, his share or part shall go to the survivor; and in case of both their deaths without lawful issue, then I give all the property to my brother I. E. and my sister H. I. and their heirs." J., one of the sons, died without lawful issue in 1812, leaving his brother M. surviving, who afterwards died without issue. Held, that J. took an estate in fee; defeasible, in the event of his dying without issue in the lifetime of his brother; that the limitation over was good as an executory devise; and the estate, on the death of J., vested in his surviving brother M. Jackson, ex dem. St. John, v. Chew, 12 Wheat. 153; 6 Cond. Rep. 489.

15. J. P., by his last will, after certain pecu-3 niary legacies, devised as follows:-"Item, I give and bequeath unto my loving wife M., all the rest of my lands and tenements whatsoever, whereof I shall die seised, in possession, reversion or remainder, provided she has no lawful issue. Item, I give and bequeath unto my beloved wife, whom I likewise constitute, make and ordain my sole executrix of this my last will and testament, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed," &c. The testator died seised without issue, and after his death the widow married one G. U., by whom she had lawful issue. Held, that she took only an estate for life, under the will of J. P. Wright v. Denn, ex dem. Page, 10 Wheat. 204; 6 Cond. Rep. 76. 16. The testator devised to his son Joseph Eden, certain portions of his estate in New York, among which were the premises sought to be recovered in this suit, to him, his heirs, executors and administrators forever. In like manner he devised to his son Medcef, his heirs and assigns, certain other portions of his property, and adds the following clause :-"It is my will, and 22. The testator devised to Elias Magruder 1 do order and appoint, that if either of my said during his natural life one hundred acres of land Bons should depart this life without lawful issue, in Washington county, Maryland. In case E. M. his share or part shall go to the survivor. And should have heirs lawfully begotten of him, he in case of both their deaths, without lawful issue, gave the one hundred acres to him and his heirs I give all the property aforesaid to my brother. and assigns for ever. But should E. M. die withJohn Eden, of Lofters, in Cleaveland in York-out such heirs, he gave, bequeathed, devised shire, and my sister Hannah Johnson, of Whitby in Yorkshire, and their heirs." Medcef Eden died without issue, having devised his estate to his widow, and other devisees named in his will. According to the established law of New York, nothing passed under the ulterior devise over to John Eden and Hannah Johnson. Medcef Eden, on the death of his brother Joseph Eden, became seised of an estate in fee simple absolute. Waring v. Jackson et al., 1 Peters, 571.

21. A devised to A, and if he die without heir or issue, the estate to go to B, his brother; gives an estate tail to A by implication. Willis' Lessee v. Bucher et al., 3 Wash. C. C. R. 369.

and desired the hundred acres to be sold to the highest bidder, and the money derived from the sale he gave to his six married children. Held, that Elias Magruder took only a life estate in the land. Shriver's Lessee v. Lynn ct al., 2 Howard, 55.

EXCHANGE OF PROPERTY.

1. Louisiana. A paper was executed by R. 17. After giving pecuniary legacies to his R. K., of New Orleans, stating that the grantor, sisters, the testator devises as follows: "I give for and in consideration of a certain lot of ground, to my wife M. all the rest of my lands and tene- (describing it,) conveyed and transferred unto J. inents whatsoever, whereof I shall die seised, in B. and S. B. all his right, title, and interest in a possession, reversion or remainder, provided that certain tract or parcel of land, (describing it,) she has no lawful issue. Item, I give to my hereby warranting and defending unto the said wife Mary, whom I also make my sole execu-J. B. and S. B. all his right and title in the same, trix, all and singular my lands, messuages and and unto all persons claiming under them. The tenements, by her freely to be possessed and paper, called under the laws of Louisiana an enjoyed After revoking all former wills, he act of sale," was signed by R. R. K., J. B., and makes A. B. executor of his will, to take and S. B., and a notary of New Orleans; and was desee the same performed, according to its true posited in the office of the notary. This was not intent and meaning; and for his pains"-leaving an "exchange of property," according to the laws 60*

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Execution.

render mistake impossible, it will be sustained, although the whole of the defendants in the original execution may not be named in the notice. Nice and technical objections to the notice, where every purpose of substantial justice is effected, ought not to be favoured. Alexander et al. v. Brown, 1 Peters, 684.

of Louisiana; and J. B. and S. B. did not, by ac- | intention to proceed, is sufficiently explicit to
cepting the transfer of property made by the
same, and signing the paper, incur the two obli-
gations imposed on all vendors by the civil code
of Louisiana, that of delivering and that of war-
ranting the lot of ground sold to R. R. K.; and
did not thereby become liable for the value of
the property stated in the said "act of sale" to
have been given for the property conveyed there-
by. Preston, Executor of Brown, v. Keene, 14
Peters, 133.

2. "Exchange," according to the civil code of
Louisiana, imports a reciprocal contract; which,
by article 1758 of that code, is declared, when
the parties expressly enter into mutual agree-

ments. Ibid.

3. An exchange is an executed contract; it operates, per se, as a reciprocal conveyance of the thing given and of the thing received. The thing given or taken in exchange must be specific, and so distinguishable from all other things of the like kind as to be clearly known and identified. Under the civil law of Louisiana, the exchanger who is evicted has a choice either to sue for damages, or for the thing he gave in exchange. But he must first be evicted before his cause of action can accrue.

Ibid.

EXECUTION.

1. Money may be taken in execution, under process of fieri facias, if it is in the possession of the defendant. Turner v. 117; 1 Cond. Rep. 261. Fendall, 1 Cranch,

2. The general rule of law is, that all the property of the debtor may be taken in execution; and whenever an officer has it in his power to satisfy an execution in his hands, it is his duty to do so and if he omits to perform his duty, he must be accountable to those who suffer by his omission. Ibid.

3. An execution issued previous to the day on which by law it ought to have issued, is not void; if irregular, the court out of which it issues will set it aside. Blaine v. The Charles Carter, 4 Cranch, 328; 2 Cond. Rep. 127.

4. The sheriff, having a fieri facias in his hands, and having received money for the defendant in the same, under an execution, in which the defendant was plaintiff, levied on the money in his hands, and paid the same to the plaintiff in the fieri facias. Held, that under the law of Virginia, it was the duty of the sheriff to have the money made under the fieri facias in court on the return day of the writ, and that he was not justified in paying over the same. Ibid. 5. Under the law of Virginia, which directs the sheriff holding an execution against the goods and effects of defendants, to take forthcoming bonds, for the property levied upon by the execution, and authorizes execution to issue for the amount of the debt due upon the original execution, after ten days' notice to the obligors in the bond of the motion for execution, the property levied on not having been redelivered, according to the condition of the bond; if the notice given to the obligees, of the plaintiff's

Maryland which declares a judgment to be a 6. It seems there is no act of assembly of levied. But by an act of parliament of 5 George lien on real estate, before execution issued and II., ch. 7, lands in the colonies are subject to execution as chattels, in favour of British mer chants. This statute has been adopted and in only one under which lands have been taken in use in Maryland ever since its passage, as the execution and sold. Tayloe v. ters, 358. Thompson, 5 Pe

tends in terms only to executions in favour of British merchants, it has long received an equi7. It is admitted, that though this statute extable construction applying it to all judgment creditors; and that this construction has been uniform throughout the state. Ibid.

8. As congress has made no new law on this
subject, the circuit court were bound to decide
this case according to the law of Maryland,
which does not consist merely of enactments of
their own or the statutes of England, in force or
courts, the settled and uniform practice and usage
of the state in the practical operation of its pro-
adopted by the legislature. The decision of their
visions, evidencing the judicial construction of
statute, and as such furnish a rule for the deci
sions of the federal courts. The statute and its
its terms, are to be considered as a part of the
interpretation form together a rule of title and
property which must be the same in all courts.
It is enough for the supreme court to know that
by ancient, well established, and uniform usage,
ing to all judgments in favour of any persons;
it has been acted on and considered as extend-
and that sales under them have always been
held and respected as valid. Ibid.

time of its rendition, yet there is abundant evi-
9. Though the statute of 5 George II. does not
dence that it has always been so considered and
provide that a judgment shall be a lien from the
acted on. Ibid.

doubted right to an execution against the person
and the personal or real property of the defend-
10. The plaintiff in a judgment has an un-
ant: he has his election; but his adoption of any
one does not preclude him from resorting to the
other, if he does not obtain satisfaction of the
debt on the first execution. His remedies are
cumulative and successive, which he may pur-
sue until he reaches that point at which the law
declares his debt satisfied. Ibid.

not extinguish the debt for which it issued. If
the defendant escape, or is discharged by opera-
11. A capias ad satisfaciendum executed, does
tion of law, the judgment retains its lien, and
may be enforced on the property of the defend-
ant; the creditor may retake him if he escape,
or sue the sheriff. Ibid.

12. We know of no rule of law which deprives

Execution.

13. The greatest effect which the law gives to a commitment on a capias ad satisfaciendum is a suspension of the other remedies during its continuance whenever it terminates without the consent of the creditor, the plaintiff is restored to them as fully as if he had never made use of any. Ibid.

the plaintiff in a judgment of one remedy by the | the same. The marshal of the United States, pursuit of another, or of all which the law gives under an execution issued against the same dehim. The doctrine of election, if it exists in any fendant on a judgment obtained in the court of case of a creditor, unless under the statutes of the United States, levied on the property in the bankruptcy, has never been applied to a case of hands of the claimant before the validity of his a defendant discharged under an insolvent act claim was decided. By the Court:-A most inby operation of law. Ibid. jurious conflict of jurisdiction would be likely often to arise between the federal and the state courts, if the final process of the one could be levied on property which had been taken by the process of the other. The marshal or the sheriff, as the case may be, by a levy, acquires a special property in the goods, and may maintain an action for them. But if the same goods may be taken in execution at the same time by the marshal and the sheriff, does this special property vest in the one or the other, or both of them? No such case can exist: property once levied on, remains in the custody of the law, and it is not liable to be taken by another execution in the hands of a different officer; and especially by an officer acting under a different jurisdiction. Ibid.

14. The escape of the defendant, by his breach of prison bounds, could not affect the lien of the judgment: the plaintiff was not bound to resort to the prison bond as his only remedy: a judgment on it against the defendant, was no bar to proceeding by fieri facias. Ibid.

15. The fifth section of the act of congress for the relief of insolvent debtors, declares "that no process against the real or personal property of the debtor shall have any effect or operation, except process of execution, and attachment in the nature of execution, which shall have been put into the hands of the marshal antecedent to the application." The application of this clause in the section, was intended only for a case where one creditor sought to obtain a preference by process against the debtor's property after his application. In such case the execution shall have no effect or operation; but where the incumbrance or lien had attached before the application, it had a priority of payment out of the assigned fund. Ibid.

16. A purchase under a fieri facias, duly is sued, is legal as respects the purchaser, provided the writ be levied upon the property before the return day; although the sale be made after the return day, and the writ is never actually returned. Wheaton v. Sexton's Lessee, 4 Wheat. 503; 4 Cond. Rep. 519.

17. Congress has by the constitution, power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce. Wayman et al. v. Southard et al., 10 Wheat. 1; 6 Cond. Rep. 1. Bank of the U. States v. Halstead, 10 Wheat. 51; 6 Cond. Rep. 221.

21. On the giving of the bond, the property is placed in the possession of the claimant. His custody is substituted for the custody of the sheriff. The property is not withdrawn from the custody of law. In the hands of the claimant, under the bond for its delivery to the sheriff, the property is as free from the reach of other processes, as it would have been in the hands of the sheriff. Ibid.

22. Under the state jurisdiction, a sheriff having execution in his hands may levy on the same goods; and where there is no prior claim, on the sale of the goods, the proceeds should be applied in proportion to the sums named in the execu tions. And where a sheriff has made a levy, and afterwards receives executions against the same defendant, he may appropriate any surplus that shall remain after satisfying the first levy, by the order of the court. But the same rule does not govern where the executions issue from different jurisdictions. The marshal may apply moneys collected under several executions, the same as the sheriff. But this cannot be done as between the marshal and the sheriff. Ibid.

23. If a creditor, after execution, permit the property levied upon to remain in the possession of the defendant, and an after execution comes 18. An execution is the end of the law. It and the same goods are levied upon, the subsegives the successful party the fruits of his judg-quent execution,will take the preference. United ment, and the distress warrant is a most effective States v. Conyngham, 4 Dall. 358. execution. It may act on the body and estate of the individual against whom it is directed. United States v. Nourse, 9 Peters, 8.

19. Property once levied on, remains in the custody of the law, and it is not liable to be taken by another execution, in the hands of a different officer; and especially by an officer acting under a different jurisdiction. Hagan v. Lucas, 10 Peters, 400.

24. The 14th section of the judiciary act of September 24th, 1789, ch. 20, authorizes the courts of the United States to issue writs of execution upon judgments which they have rendered. This section provides only for issuing the writ, and directs no mode of proceeding by the officer obeying its command. Bank of the U. States v. Halstead, 10 Wheat. 51; 6 Cond. Rep. 221.

20. Personal property was levied on by a she- 25. An extent under the statute of Massachu riff under the judgment of the state court of Ala-setts of 1784, upon real estate, is not good, unbama, and was, according to the provisions of less it appear by the return that all the appraisthe law of that state, delivered to a person ers are sworn, nor unless all the appraisers conclaiming title to it against the defendant in the cur in the appraisement. United States v. Slade, execution, and who gave bond to the sheriff for 2 Mason's C. C. R. 71.

Execution.

26. But it is not essential to the validity of the levy as between the parties and their privies, that the levy should be recorded within the three months prescribed by the statute, nor that a certificate of the appraisement should be made and signed by the appraisers: it is sufficient that the officer's return contains all the facts necessary to make the levy valid. Ibid.

27. The general rule is that where the party takes by statute, extent or title on record, every thing essential to that title must be apparent on the record. Ibid.

28. The process act of the United States gives the same remedy to the United States against the lands of delinquent collectors, that the state of Virginia gives against the lands of those against whom she has obtained a judgment. United States v. Graves et al., 2 Brockenb. C. C.

R. 379.

29. An officer of the United States who has levied a sum of money on an execution in favour of the United States, to whom the United States are indebted for fees of office, in a sum greater than the amount of execution, has a right to retain it by way of set off: and on a motion made on the part of the United States to commit the officer for failure to pay over the money so levied, he will be permitted to show that the United States are indebted to him; and if this be shown, it is sufficient cause why he should not be attached. United States v. Mann, 2 Brockenb. C. C. R. 9.

injury done to the plaintiff. The return of the deputy shows that no bail was taken; and if, by taking out other process, the plaintiff could have secured his debt-which is a fact to be deter mined by the jury-the loss of the debt to the plaintiff is not the necessary legal consequence of the conduct of the deputy; and no injury, in a legal sense, is done to the plaintiff thereby. Ibid.

32. A levy and condemnation, under an execution, keep a judgment alive, and preserve the lien without a scire facias. United States v. Mechanics' Bank, Gilpin's D. C. R. 54.

33. The proceeds of an execution out of a state court, being in the sheriff's hands, and claimed both by the plaintiff and by the United States, who were also judgment creditors, were paid to the former on his agreeing to pay them over to the latter, if the said court decided they were entitled to them. Held, that assumpsit for money had and received will lie, at the "suit of the United States, in the district court, against the receiving creditor. Ibid. 53.

34. Where the marshal levies on, but does not keep actual possession of, a vessel which had been removed from a wharf, without the knowledge of a wharfinger, and she is subsequently returned to the same wharf, the wharfinger is to be paid his previous wharfage out of the proceeds of a sale under the execution, made subsequent to her return. Johnson v. The M'Donough, Gilpin's D. C. R. 101.

35. Where a sum of money in court has been decreed to be paid to a libellant, the court will not, on application of a creditor, appropriate it to a debt due by the libellant. Brackett v. The Hercules, Gilpin's D. C. R. 184.

30. A marshal is liable upon his official bond, for the failure of his deputy to serve original process; but the measure of his liability is the extent of the injury received by the plaintiff, produced by such negligence. If the loss of the debt be the direct legal consequence of the fail- 36. Where a surplus remains in court from ure to serve the process, the amount of the debt the proceeds of a sale made for the benefit of a is the measure of the damage; but the mere lien creditor, it may be appropriated in payment failure to execute the process, does not in itself of other liens on the original property, but not necessarily infer the loss of the debt to the plain-of debts arising on contracts merely personal. tiff, by the negligence of the officer; because Ibid. 188. the plaintiff might sue out other process on the 37. Workmen and material men, having a failure of the officer to execute the first process. lien on a vessel which has been taken in execuThe question whether the loss of the debt was,tion and sold under a judgment in favour of the or was not the direct legal consequence of the negligence of the officer, is a question of fact, depending on circumstances, of which the jury must judge. United States v. Moore's Administrators, 2 Brockenb. C. C. R. 317.

United States, are entitled to payment out of the fund, in preference to the United States. Phillips v. The Scattergood, Gilpin's D. C. R. 1.

38. It is not upon the supposition of fraud, and the length of time to which indulgence had been granted by the plaintiff, in an execution against the defendant, that a subsequent execution, levied, has been preferred to a prior execution, the proceedings under which have been suspended by such indulgence. Berry v. Smith, 3 Wash. C. C. R. 60.

31. Where a writ of capias ad respondendum comes to the hands of a deputy marshal, who arrests the debtor, and the debtor thereupon pays to the deputy the amount of the debt for which he was sued, and the officer discharges the debtor from custody, and returns the writ, "debt and costs satisfied," this is not the official 39. The true reason given for the preference act which binds his principal. The deputy mar- to the subsequent execution levied is, that the shal is a mere ministerial officer; and he has no end of the execution is to obtain satisfaction for right to adjust the debt, and make himself re- the debt; and when delivered to the officer, it sponsible to the plaintiff. He is bound to pursue is his duty to proceed immediately for the purthe mandate of the writ; and that requires him pose of obtaining satisfaction. The delivery of to arrest the debtor, and take bail. The dis- the execution changes the property, and vests it charge of the debtor from custody without tak-in the sheriff; and his possession is notice to all ing bail is, indeed, a misfeasance in office, for the world. Ibid. which his principal, the marshal, is responsible; but he is only responsible to the extent of the

40. If the plaintiff in an execution orders the sheriff not to levy, the purpose of the delivery

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