Opinion
January Term, 1812.
From Halifax.
A having recovered a judgment against B, sued out a writ of fieri facias, which the sheriff levied upon two negroes, and returned his levy on the execution. A then sued out another fi. fa. instead of a venditioni exponas: Held, that A, by suing out a fi. fa. after the return of the levy, discharged the levy, and was not entitled to a distringas against the sheriff to compel him to sell the negroes.
THIS was a motion for a distringas to issue to compel the defendant to expose to sale two negroes, Anaca and Clary, and one bay horse, theretofore levied on by him, in virtue of an execution of Joseph Scott, assignee, etc., against Durham Hall and William Brickell. The motion was founded on the following facts, viz.: Joseph Scott obtained judgment against Durham Hall and William Brickell, in Franklin County Court at June term, 1792; a fi. fa. issued to September term, which was returned by the sheriff, "stayed by plaintiff's attorney." Another fi. fa. issued to December term, on which the sheriff returned that he had "levied execution upon two negroes, Anaca and Clary, and one bay horse, and that he had not sold for want of bidders." Instead of suing out a venditioni exponas, commanding the sheriff to sell the property levied on, the plaintiff sued out to March term a writ of fi. fa., which the sheriff returned "stayed by plaintiff's attorney." Another fi. fa. was sued out to June term, which the sheriff returned "levied on two negroes, Anaca and Clary, two head of horses, etc., not sold, for want of bidders." A writ of venditioni exponas was issued to September term, on which the sheriff returned "no sale for want of bidders." Another venditioni exponas was issued to the next term, which was stayed by plaintiff's attorney, and then a writ of fi. fa. was issued, which was levied on some property of the defendants, and a sale being made, the property sold for ten cents only. The plaintiff then sued out a venditioni (144) exponas, commanding the sheriff to sell the negroes Anaca and Clary, and the bay horse, first levied on; and in the meantime, J. Foster having been appointed sheriff, he returned on this writ, that "no such property was to be found." Whereupon a motion was made, that a distringas issue to compel Jordan Hill, the late sheriff, who had levied on the two negroes and the horse, to sell the same; and whether such a motion should be allowed was referred to this Court.
It may be laid down as a principle that a levy may be discharged by the act of the plaintiff. There are authorities to that effect, and the law may be considered as settled. When one fi. fa. is issued against the property of the defendant, it ought either to be satisfied or discharged before another is sued out; otherwise, a plaintiff might wantonly harass a defendant by multiplying executions, and sending them to different places, and levying to an amount greatly beyond the debt. The two executions in this case are incompatible with each other, and both cannot subsist at the same time. The first ought to have been proceeded on and its final event known before a second was ordered. The suing out of the second must be considered as a dereliction of the first; for it is to be presumed that a second would not have been ordered by the plaintiff's attorney if he meant to proceed on the first. It would be an extreme hardship upon the sheriff to distrain him to proceed on an execution which the plaintiff himself has abandoned by every act short of a positive discharge.
Cited: Smith v. Spencer, 25 N.C. 264.