President of the Ontario Bank v. Hallett , 8 Cow. 192 ( 1828 )

Curia, per Woodworth, J.

It is well settled, that in an action for an escape, the sheriff cannot object the irregularity of the ca. sa. 13 John. 529; 15 John. 378.

As to the levy, it is apparent, in the first place, that none was made or intended to be made; and if there had been a levy, the under sheriff was so well satisfied of an adverse claim, that he demanded an indemnity. Whatever may have been the state of the title, it can never be permitted to a defendant who denies that he is the owner of property levied on, to take the benefit of the rule which considers the levy on sufficient property unquestionably belonging to the defendant, a satisfaction of the execution.

If, in judgment of law, such a levy operated as an ex-tinguishment of the judgment against Sharp, and, by consequence, of that against Grose & Hillakie, then the issuing of the ca. sa. was irregular. To correct the irregularity, the defendants in that execution might have applied to the court to set the execution aside. But, I apprehend, it was not competent for the sheriff to avail himself of this ground as a defence, in an action for the escape. He cannot, in that form, question the regularity.

^ The rule, as laid down in Hoyt v. Hudson, (12 John. 208,) is, that where a sufficient levy is once made, the sheriff cannot make a second levy. The principle recognized in that case, goes to the extent of saying the defendant is discharged. 4 Mass. Rep. 403 ; 1 Salk. 322 ; 2 Ld. Raym. 1072. But here the question occurs, does the principle apply to, and discharge the original debtors, unless actual payment is made ? Where a plaintiff has taken collateral security, he has several remedies, and may pursue them all until actual satisfaction. The levy on sufficient upon the collateral security, may protect the surety against farther liability; but it is no payment of the original debt; nor is it a sufficient answer, to allege that the plaintiff’s, after levy on the surety’s goods, might *have obtained satisfaction out of them, or made the sheriff liable for not doing so, 1 o' the collateral security, the plaintiffs might proceed at their election; but were not obliged to hazard litigation for ^e benefit of the original debtors. They might cease, in their discretion, to pursue such security. The real debtors have no just cause to complain; for they are the persons who ought to pay. It would seem to be a novel doctrine, as well as unjust in principle, which would allow him to. complain who had received no injury.

I think the decisions of the judge were correct. The motion for a new trial is denied.

ISTeW trial denied.