By the Court,
It is perfectly clear, in this case, that the plaintiff can take nothing by his motion. By his own showing, the plaintiff in error became the last and highest bidder for certain promissory notes which were in deposit in the State Bank, and which the sheriff exposed to sale as the property of one Jefferson Smith, to satisfy sundry executions put into his hands. We know no law authorizing the sheriff to seize in execution promissory notes. They are but chosesin action, not subject to be levied at the common law, and we have no statute warranting such a seizure and sale. Again, the notes in fact were not levied on. They were never in the custody of the sheriff. They were shown to be upon deposit, and in possession of another, and it surely cannot be pretended that the sheriff can make a lawful levy without a caption of the property, so seized or taken in execution, Judgment reversed,