John Scott’s executor v. Jordan Hill, late Sheriff of Franklin.
From Halifax. /
A. having recovered a judgment against B, sued out a writ of fieri faciasj 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 J oseph Scott, assignee, &c. 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 ; afi.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 “ executed 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 attornéy.” Another fi, fa. was sued out to June term, which the Sheriff’ returned “ levied on two negroes, Anaca and Clara, two head of horses, &c. 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 vendi-tioni 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 far *144ten cents only. The Plaintiff then sued out a venditioni exponas, commanding the Sheriff to sell the negroes Ana- _ ca and Clary, and the bay horse, first levied on ; and in the mean time, 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 dis-tringas 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.
Taxrok, Chief-Justice,
delivered the opinion of the 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 harrass a Defendant by multiplying executions, and sending them to different places,-and le - vying 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 firsts for it is to be presumed that a second would not have been ordered by the Plaintiff’s attorney, if. iie 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.