Hoyt v. Hudson , 12 Johns. 207 ( 1815 )

Per Curiam.

This case comes before the court on a writ of error to the common pleas of Otsego county, upon a bill of exceptions tendered at the trial. The general principle adopted by the court below was correct. When an officer, under an execution, has once levied upon the property of the defendant, sufficient to satisfy the execution, he cannot make a second levy. This principle appears to be well settled. In the case of Clark v. Withers (2 Ld. Ray. 1072. 1 Salk. 322.) it was ruled, that when a defendant’s goods are seized on a fi. fa. the defendant is discharged. And im the case of Ladd v. Blunt, (4 Mass. Rep. 403.) it is expressly decided, that when goods sufficient to satisfy an execution are seized on a fi. fa. the debtor is discharged, even if the sheriff waste the goods, or misapply the money. The same principle is adopted, and, indeed, carried a little further by this court, in Reed v. Pruyn & Staats, (7 Johns. 428.). where it is held, that a sheriff cannot take a bond or other security on a fi. fa. and still hold the execution in his hand, and use it afterwards to enforce payment. According to the principle here recognized, it was immaterial whether the property first levied upon was sufficient to satisfy the execution or not, for upon such levy the constable took security for the debt; and to which security he actually resorted. His failure to recover in the first instance, arose from his own negligence in not procuring testimony to prove the hand-writing of the surety. And although the testimony, showing that the plaintiff had, since the commencement of the present suit, recovered against the surety the amount of the execution, might not be strictly admissible, yet it was perfectly immaterial, and could not alter or affect the merits of the defence set up on the other grounds. The judgment of the court below must accordingly be affirmed.

Judgment affirmed»