¶1 The Court thinks the judgment must be affirmed. The instruction is impeached, on the authority. *46 of Roberts v. Scales, 1 Ired. 88. But the defendant does not bring himself within that case, for the reason pointed out by his Honor.
¶2 There, each party was a creditor proceeding on process; so that the one who last levied, and took the property into actual possession, shewed rights which might be affected by the fraud or laches of the other officer. But on whom can this plaintiff be charged with a fraud ? Certainly, it was not a fraud on Boling to leave him in possession; and so far as the defendant acted under Boling’s directions, or by his consent, he must stand in Boling’s shoes. If, however, he could get olear of that connexion, he would then be a mere wrong-doer in taking the property in Orange without any legal authority operating in that county ; and as he acted with a view of depriving the plaintiff of the property, such taking and the removal of the property was in itself a conversion, which entitled the plaintiff to this action. If the defendant wished to impeach the plaintiff’s levy, he should have obtained executions in Orange, which would have authorised him to seize the property. Until he did so, he had no right or authority to intermeddle ; and could not In a legal sense be prejudiced by the act of the plaintiff.
¶3 Per Curiam-. Judgment affirmed'.