Coleman v. Mansfield

The opinion of the Court was delivered by Stroud, J. (after stating the facts). — Where all lire money is not levied on a fieri facias, the writ should be returned before a second execution is taken out, for that must be grounded upon the first, and should recite the proceedings under it. Ovyat v. Tyner, 1 Salk. 818 ; M’Michael v. Knapp, 7 Conn. 413. But the omission to recite the proceedings under the first writ does not render the second void. It was an irregularity only, and might have been amended upon seasonable application for this purpose to the court. M’Michael v. Knapp. Whether a larger sum was claimed by the second pluries fieri facias than was due, is altogether uncertain, so far as respects the amount of the judgment, exclusive of costs. It appears, however, that the same costs were indorsed on all the executions, and as the sheriff sold goods under the first writ to the value of 125 dollars 64 cents, of which the plaintiff asserts that he received but 54 dollars 14 cents, there can be but little doubt tire costs were retained by the sheriff, as this accords with his usual practice. This is an error which the court would rectify in the distribution of the money, when brought into court: its existence could not make the writ. void. It is said, that, inasmuch as the pluries fieri facias of September term 1833, had been levied on real estate, as the defendant’s property, and a condemnation had upon it, the plaintiff was bound to issue a venditioni exponas, and ascertain whether his debt could be obtained from the sale. It is well settled that seizing goods in execution to the value of the debt, is a discharge of all responsibility on the part of tire debtor, and a satisfaction of the judgment, whether the goods be sold or not; Hunt v. Breading, 12 Serg. & Rawle 41, [59] citing Clerk v. Withers, 1 Salk. 323, anti other English authorities. Ex parte Lawrence, 4 Cowen 417 ; Jackson v. Bowen, 7 Cowen 13, are to the same effect; and in Barnet v. Washebaugh, 16 Serg. & Rawle 410, it was ruled that a liberari facias, executed by the delivery of possession, is a satisfaction of the plaintiff’s debt: and if a person be arrested under a capias ad satisfaciendum, no other process can he sued out against his lands or goods, unless he he discharged by operation of law. 3 Bl. Comm. 414; Freeman v. Ruston, 4 Dall. 214 ; Duncan v. Harris, 17 Serg. & Rawle 436. The ground of these decisions is, that while these several writs are in force, they are considered as operating satisfaction to the party by whom they are issued. Whether a levy and condemnation under a fieri facias upon land, should be regarded in the same light, is a point not decided. Gross v. The Huntingdon Bank, 1 Penns. Rep. 425, 426. But it is decided that after a fieri facias has been levied on real property, and the property condemned, the plaintiffcannot abandon these proceedings and take out a capias ad satisfaciendum without leave of the court. Bank of Pennsylvania v. Latshaw, 9 Serg. & Rawle 9. AH other writs of execution are obviously subject to the same rule. There can be no doubt, therefore, that the second pluries fieri facias was improperly issued. But has the defendant a right to complain 1 In the first place, at the lime when the levy under the pluries fieri facias was made, he disclaimed all title to the veal estate levied upon. We have no information whether this disclaimer was communicated by the sheriff’s officer to the plaintiff before or after the condemnation by the inquest. If not till afterwards, and the plaintiff on this account refrained from further proceeding by a sale of the property, and in lieu of this resorted to the second 'pluries fieri facias, is it. competent to the defendant to object, on the sole ground that the levy and condemnation having taken place under the pluries fieri facias, it wa= incumbent on the plaintiff to issue a venditioni exponas, and effect a sale 1 In the face of such a disclaimer, it would be against the plainest principles of justice to permit him to be heard. In the Ontario Bank v. Hallett, 8 Cowen 194, Woodworth, J., delivering the opinion of the court, says ; “ 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.” Without doubt, if a levy be made on personal property sufficient to pay [60] the debt, and the plaintiff, at the instance of the defendant, authorises the sheriff to release the goods, the defendant cannot avail himself of the doctrine that such a levy is equivalent to satisfaction. This was the very point of Duncan v. Harris, before cited, and the wonder is that a court in the last resort should have been called upon to review such a decision. A disclaimer of title to the property levied upon, and a release of goods after a levy, ought equally to estop a defendant from objecting to subsequent proceedings of the plaintiff. Again : on the day on which the second pluries fieri facias was levied on the sloop which has been sold, Joseph Mansfield gave notice in writing to the sheriff that the sloop belonged to him, and not to the defendant, and both he and the defendant made affidavit to the same effect. If then, the sloop was not his, the defendant has not been injured by the sale of it, on the contrary, he has been benefited, inasmuch as the judgment against, him has been fully satisfied by the sale of another man’s goods. The familiar principle that no one can assign for error that which is for his advantage, may therefore be properly invoked as an additional answer to the present application. Rule discharged.