President of the Farmers & Mechanics' Bank v. Kingsley

Ransom, C. J., delivered the opinion of the Court. The first question presented by the demurrer is, whether a levy of an execution upon personal property of the debtor, sufficient to-satisfy the judgment, shall be deemed so far an extinguishment of the debt, as to constitute a good plea in bar, to an action brought for the recovery of such debt. Were to we consider this question and decide it upon general principles-, irrespective of judicial precedent, we should look, of course, to the rules of pleading and’ evidence, for light to guide us to its proper resolution. In setting out a cause of action or defence, two things are especially requisite: 1. That the facts alleged, on which the pleading is predicated, be sufficient in law to — 387 — constitute a good cause of action or defence ; and 2. That those facts be set forth according to the forms of law. Gould’s PI. '48. In the present case, we have only to enquire whether the facts averred in the defendant’s plea, furnish a defence to the plaintiffs’ declaration. It is a fundamental rule of pleading, “ that it is not necessary to state matter which would come more properly from the other side. It is sufficient that each pleading should, in itself, contain a good prima facie case, without reference to possible objections not yet urged.” Steph. PI. 394. As Chitty expresses it: “ It is enough, for each party to make out his own case in defence.” 1 Chit. PI. 222. The party sufficiently substantiates the charge or answer, for the purposes of pleading, if his pleading establish a prima facie charge or answer. He is not bound to anticipate, and, therefore, is not compelled to notice and remove, in his declaration or plea, every possible exception, answer, or objection, which may exist, and with which the adversary may intend to oppose him. Nor is it necessary to allege implications of fact, or presumptions of law. Steph. PL 397.* Applying these rules to the pleas under consideration, are they to be adjudged a sufficient answer to the plaintiffs’ declaration ? In other words, should a jury, with evidence before them, of the levy of an execution upon sufficient personal effects of the debtor to satisfy the judgment, presume that the judgment had been satisfied ? Such evidence is to be weighed, of course, under the application of the rules of law, which define the rights and liabilities of parties, after levy made, and prescribe the duties of the sheriff, in the disposal of property levied upon. The creditor has an absolute right to have the property — 388 — sold, converted into money, and applied to the payment of his judgment; and the debtor is liable to the sheriff in trespass, if he interfere with his possession of it. The law declares it the imperative duty of the sheriff, having seized the goods oí a debtor in execution, to proceed, within the time prescribed, to sell them, and produce the money for the satisfaction of the debt, unless he be excused therefrom by the consent or acts of the parties, or by inevitable accident. What, then, should be presumed from the averment in question ? A levy being shown to have been made upon the debt- or’s goods, sufficient in value to satisfy the debt, should it be presumed, in the absence of any other or further proof, that the sheriff had performed the duty "enjoined upon him by law, and followed his levy, by a sale of the goods, and a satisfaction of the judgment; or, should the fact of a levy only, be the ground of no presumption whatever? Or, should it be presumed from the allegation of a levy merely, wdthout an averment of sale and satisfaction, that no sale and satisfaction had been made ; that the property was returned to the defendant by consent of all parties ; was eloigned by him ; belonged to some third person; was destroyed by the elements ; or was in some other way disposed of, so as to relieve the creditor and sheriff from liability, and still leave the execution unsatisfied ? The answer to these enquiries, it seems to me, perfectly settles this case, so far as the rules of pleading are to govern its decision. Because, if, from proof of a levy clone, a presumption of sale and satisfaction should arise, that is enough for the defendant; he is bound.to allege nothing further. He thus makes a good answer to the plaintiffs’ cause of action, prima facie; and he may well, leave it for the plaintiff himself to bring upon tbe record, — 389 — by replication, any fact which would i'ebut such presumption. And now let us examine the adjudged cases, and learn, if we can, from them, the proper resolution of the question. And, in doing so, it seems best, to comport with order and convenience, to consider, first, the authorities relied upon, in support of the rule for which the counsel for the defendant contends, as theirs is the affirmative side of the question. The earliest decision to which our attention has been called, is that of Mountney v. Andrews, Cro. Eliz. 237; 4 Leon. 150, decided in 1591, during the reign of Queen Elizabeth ; and it is thus : “In sci. fa. upon a judgment in debt, the defendant pleaded, that heretofore, aJi.fa. at the suit of the now plaintiff’, issued, directed to the sheriff of Leicester, by force of which the said sheriff took divers sheep of the defendant, and still doth detain them. It was holden by the court a good plea, although he doth not say that the writ was returned ; for the execution is lawful, notwithstanding that, and the plaintiff hath remedy against the sheriff.” This case establishes the rule that a second execution'cannot properly issue, while a former one is outstanding, with a levy unaccounted for. The leading English case, however, is Clerk v. Withers, 2 Ld. Raym. 1072; S. C. 1 Salk. 323; 6 Mod. R. 270; Holt’s R. 303, decided in 1704. The facts as reported were, that one Dives, as administrator of another, had recovered judgment against Clerk, the plaintiff, and sued out afi. fa. and placed it in the hands of the defendant, Withers, sheriff of Middlesex. The Sheriff returned that he had seized the goods to the value of the debt, and that they remained in his hands for the want of buyers. Afterwards, and before sale of the goods, Dives, the plaintiff, died. Clerk then brought sci. fa. against the sheriff^ to show cause why the goods should not be restored to — 390 — him, as there was nobody, (the plaintiff being dead,) to receive the fruits of the execution. On demurrer to the writ, in the common pleas, the defendant had judgment, and the cause was removed to the King’s bench by writ of error. There the cause was twice fully argued by counsel on both sides, and Lord Raymond, in his report of the case, says it was argued seriatim by all the judges. Three points were made upon the argument, and the first was, that the property, notwithstanding the levy, remained in Clerk, the execution debtor. The counsel for Clerk insisted in argument, that the property in the goods was not altered by the service, and that if, after the service, the debtor had paid the money, he might have taken his goods again; and that trover would lie against the sheriff for the goods, if he detained them. The special property, he said, might be in the sheriff. Again: it was urged that the party was not discharged by the sheriff’s return that he had seized the goods to the value, &c. Raymond, contra, contended that the defendant was discharged by this service, and therefore there was no reason that he should have his goods again. If the sheriff seize to the value of the debt, the defendant is discharged, though the sheriff do not satisfy the plaintiff; and the plain tiff cannot sue out a new execúlion ; for the sheriff, by the seizure, becomes liable to him. I have quoted from the arguments of counsel, to show that the precise question now before this court, was presented, argued, and decided, in the case under review. Each of the judges delivered an opinion. Gould, Justice, said he was of opinion that judgment ought to be affirmed, for these reasons : 1. Because Clerk, by the seizing of his goods in execution, was not discharged of the judgment; and, therefore, when upon a fi. fa. the defendant paid the debt to the sheriff, this was held to be a good plea to an action of debt upon the judgment, — 391 — So in sci.fa. upon a judgment the same plea was held well. As soon as the sheriff seizes the goods by virtue of the writ of fi.fa.. he gains a special property in them, and may maintain trespass against the defendant, if he take them away. So he may maintain trover against a stranger that takes them away. Chief Justice Holt,, was also of opinion that the judgment of the common pleas should be affirmed; 1. Because, after seizure of the goods by the sheriff he had nothing to do but to bring the money into court. 2. Though the sheriff is out of office, yet he is bound to sell the goods ; and, 3. The plaintiff has no further remedy against the defendant, against whom' he recovered his judgment, but must go on against the'sheriff. For, the defendant having lost his goods, may plead, levied by fi. fa. in bar to an action ofdebt, or sci.fa. upon the judgment; citing Atkinson v. Atkinson, 3 Cro. 390, where, in a sci.fa. on a judgment in detinue, the defendant pleaded that, upon a distringas upon that judgment to the' sheriff, he delivered the goods to the sheriff; and the seizing the goods upon the distringas is the same thing in that action, as levying the money upon a fi.- fa.-, in other cases; and, as my brothers say, it has been held to be a good plea, that the defendants goods were seized upon a fi. fa." The same doctrine is held in 2 Bac. Abr. 335, where ft is said, “If the sheriff take goods in execution, by virtue of a fi. fa., whether he sells them or not, yet, being taken from the party against whom the execution was sued, he may plead that taking, in discharge of himself, and shall not be liable to a second execution, though the sheriff hath' not returned the writ.” The first case we find in which this question was agitated in this country, is Ladd v. Blunt, 4 Mass. 402, decided in 1808. There the doctrine of Clerk v. Withers, that a levy of sufficient personal property is a good plea? — 392 — in debt on judgment is directly recognized, although it was held otherwise as to an extent upon land. One of the pleas was the same as the defendants’ plea in this case. Chief justice Parsons announced the opinion of the court. The ruling in Ladd v. Blunt, was reaffirmed by chief justice Parker in Bayley v. French, 2 Pick. 590, so late as 1824. This subject seems to have first come up for consideration in the state of New York, in Denton v. Livingston, 9 John. R. 98, decided in 1812, in which case Kent, then chief justice, fully recognised the rule in Clerk v. Withers, to be sound law. So again, three years later, in Hoyt v. Hudson, 12 John. 207, he says “ where 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.” Again, in Troup v. Wood, 4 John. Ch. R. 418, when chancellor, the same learned jurist, reaffirming the rule laid down in the previous cases, said : “ This is the just principle of law.” Ex parte Lawrence, 4 Cowen. 417, re-asserts the doctrine of all the former decisions, citing them with approbation. Jackson v. Bowen, 7 Id. 13, 21, and Cornell v. Cook, Ibid. 312, and Wood v. Torrey, 6 Wend 562, are to the same effect. In Shepherd v. Rowe, 14 Wend. 262, decided as late as 1835, the defendant plead a levy upon real estate, and his plea was for that reason adjudged bad; but the court said expressly that it would have been otherwise had the levy been upon personal property. In Ohio, also, this question has been adjudicated. Cass v. Adams, 3 Ham. R. 223, was debt upon an appeal bond : Plea, levy upon goods to a large amount: On demurrer and joinder the plea was sustained. The court say, “the — 393 — levy of an execution upon goods or land, whilst the levy is in force and undisposed of, is a satisfaction.” In Webb v. Bumpass, 9 Port. (Alab.) R. 201, decided in 1839, the doctrine was fully discussed, and the rule of Clerk v. Withers, and the subsequent cases, was expressly affirmed by the supreme court of Alabama. The elementary treatises all declare and approve the principle of these decisions. In Watson's Sheriff, 138, it is said that “the defendant is discharged from the judgment, and all further execution, if the sheriff has taken goods to the amount of the debt, although he does not satisfy the plaintiff; or if the sheriff has levied goods to the amount of part of the debt, no further execution can issue until the writ is returned.” Edw. Tr. 133, and 2 Cow. Tr. 1073, (Ed. 1841,) are to the same effect. In most of the cases cited above, the point we are now considering, was brought directly before the court, as in this1 case, by the defendant’s plea; and in all of them, the rule contended for by the defendant here, is recognised as settled law. And, it may be added, that they were tried and decided, at various times, in a period of more than two and a half centuries, during which, the best and ablest jurists that have ever lived, presided in the tribunals where those trials were had and decisions made, including a Holt, a Butter, a Kenyon, and a Mansfield, in England, and a Parsons, a Kent, and a Spencer, in our own country. Great as is the weight of these authorities, however, it is encountered by the plaintiffs’ counsel, and sought to be overbalanced, by what he declares to be the preponderating weight of the later cases. And he first refers us to the case of Peploe v. Galleirs, 16 Eng. C. L. R. 371. That was a sci. fa., on a judgment in replevin. The declaration averred that a fi. fa., had been duly issued and returned milla bona by the sheriff’, and an a.l. fi. fa., with a like return. The judgment was — 394 — for ¿£274, 13s. 4d. The defendant plead that a fi. fa. bad been issued to the sheriff of Hereford, and that he had seized and taken divers goods and chatties of the defendant, of the value of ¿£37, 13s. as by the writ of fi. fa. in the court remaining, &c. To this plea there was a special demurrer, and the grounds were, 1. That the plea began and concluded as an answer to, and professed to answer the whole declaration, and to bar the plaintiff from having execution of all or any part of his damages, whereas, in truth, it answered only as to the'¿£37, 13s. — 2. That it was not set forth in the plea, that execution of the residue of the damages did not remain to be made to the plaintiff ; and also that the taking ^wz of the damages in execution was no bar to an execution for the residue. The opinion is per curiam, and I give it entire: “ The defendant has merely stated in his plea, that the sheriff seized his goods, and took them in execution, and has not proceeeed to state that he had returned the writ. The goods might have been restored to the defendant, and on this ground the plaintiff is entited to judgment.” Now it will be seen that the court decided neither of the points made in the case; but did decide, that the plea was insufficient, because it did not state a return of the fi. fa., and that the goods had not been restored to the defendant. The doctrine of Clerk v. Withers was not in terms, questioned nor was it even alluded to by court or counsel. The counsel for Peploe, relied upon Wecks v. Peach, 1 Salk. 179, which merely decided, that, if a plea to the whole declaration answers but part, it is demurrable. The King v. Wells & Allnutt, 16 East. 282, was also refered to in support of the demurrer, which decides this point, and no other, that goods taken in execution under a fi. fa., at the suit of a subject, are, before sale, liable to be seized by virtue of the King’s extent, although. — 395 — the latter be tested, after the delivery of the fi. fa. to the sheriff. The first of these cases fully sustains the first ground of demurrer taken by Peploe’s counsel, but neither, has any tendency to support the opinion of the court. Peploe v. Galliers was decided in 1820, and can the dignity be claimed for it, of having overruled the venerable case of Clerk v. Withers, which had stood unquestioned, for more than a century, — a century, too, which had poured a continual flood of light and learning upon legal science and civil jurisprudence? It aspires to no such consequence itself. No English case was referred to, nor have we found any, which, in terms, nor as I think, by implication, overturns the doctrine of that case. Giles v. Grover, 23 Eng. C. L. R. 277, was also cited. Only the head note of the case, is found in the condensed report, referred to, and that is thus: “ Goods of the debtor already seized under a fi. fa.., but not sold, may be taken under an extent, in chief, or in aid.” Simply reaffirming the principles laid down in Rex v. Wells & Allnutt. The late American cases, cited by the plaintiffs’ counsel, present an aspect of this question, seeming to differ from the earlier decisions; and of this class Green v. Burke, 23 Wend. 490, is the leading case. The facts were, that the plaintiff and another took out an execution against the defendant, and placed it in the hands of one Stevenson, a constable; he went to the residence of the defendant, who told him to levy on three colts, which he did, and made an endorsement thereof on the execution, but left the property in the possession of the defendant. In a few days after, he returned the execution to the justice, and informed the defendant of his having done so, saying that he was under 21 years of age, and had abandoned the levy. A new execution was then issued and levied — 396 — upon a quantity of growing wheat of the defendant, which was sold to the plaintiff. The defendant subsequently undertook to harvest the wheat, and tne plaintiff took it by a writ of replevin. The defendant insisted, that the judgment was satisfied by the first lev}*- on the colts, and that the second execution and levy, were, consequently void. The plaintiff contended that the acts of Stevenson, under the first execution, did not constitute a levy. The court held that the plaintiff acquired no right under the first levy, and that though Stevenson made himself a trespasser, by his assumed levy, yet he had a right to abandon it. “ The result is plain,” said Justice Cowen, in pronouncing the opinion of the court. “Stevenson was a trespasser, and after the plaintiffs in the execution had been informed that he was an infant, they, by urging him on, would have brought themselves to participate in his peril.” “ The upshot is, that this young man prudently chose to do before hand, what the law would have forced him to do, in another form; and however stringent the rule of satisfaction by levy, this case made a plain exception.” The opinion of the learned judge contains a long and sifting criticism upon Mountney v. Andrews, and Clerk v. Withers, and the later cases, which had been supposed to establish the rule, “that a.judgment was unqualifiedly satisfied by a levy, merely.” He strenuously contended, that “ satisfaction,” in all those cases, is spoken of under many qualifications and exceptions; and, alluding to Stevenson’s levy upon the colts of the defendant, he remarked : “ Prima facie, then, the debt was, or might have been, according to the event, satisfied by the levy.” “Admitting that the constable had the power to levy, then, so long as he kept the act good, and followed it up, something near the consequence contended for, undoubtecily followed ; but he withdrew, without the consent or knowl — 397 — edge of the plaintiffs, and I am not prepared to admit that, in such a case, the creditor is bound to look to the officer alone for his remedy.” He concludes his review of this branch of the case thus : “What, then, after all, does the rule amount to? Merely this : that the levy is a satisfaction, sub modo. It may operate as a satisfaction, and must be fairly tried; but if it fail, in whole or in part,.without any fault of the plaintiff, he may go to his farther execution. He must fairly exhaust the first, and while that is going on, he can neither sue on the judgment, nor have another fi.fa., nor a ca. sa.” Now, can it be insisted, that this case overturns the doctrine of Clerk v. Withers, and establishes a new rule? I think not, clearly. It conflicts with that case, and those which have followed and been based upon it, so far only as they aré supposed to uphold the proposition that a naked levy is, of itself, an absolute and unqualified satisfaction of a judgment. The object of Justice Coioen seemed to be to show that such a rule was not of universal application; that there were many exceptions to it; and that the case he was discussing, fell within them. This is apparent from the whole course of his reasoning. Taylor v. Ranney, 4 Hill’s R. 620, is also referred to. That was sci.fa. to revive a judgment. The second plea of the defendants was, that a fi.fa. had been issued, by virtue of which the damages, costs and charges, were levied on the goods, lands and tenements of the defendants. The plaintiffs replied, and the defendants demurred to the replication. Justice Bronson delivered the opinion of the court in these words : “ The second plea does not show a satisfaction of the judgment. The allegation is, that by virtue of the fi-fa., the damages were levied on the goods and chattels, lands and tenements, of the judgment debtor. It should have been, that the damages were levied of the goods, See. A mere levy upon lands, never amounts to — 398 — satisfaction; nor does a levy upon goods, even where they are of sufficient value to pay the debt, necessarily amount to satisfaction. Here the levy was upon lands, as well as goods, and there is no averment that either, or loth, of them were of sufficient value to pay the debt, or that any sale or satisfaction has followed. The plea is clearly bad. ” No cases were referred to in support of this decision, except Shepherd v. Rowe, to show that a levy upon lands was not a satisfaction of a judgment, and Green v. Burke, to. show that a levy of sufficient personal property, was not always a satisfaction. It will be. observed here-, that there was no averment that the property levied upon was sufficient in amount to pay the debt. Browning v. Hanford, 5 Hill’s R. 588, was an action by the creditor, against the sheriff for not collecting an execution. The execution had been levied upon sufficient goods to pay the debt, but they had been consumed by fire, without fault of the sheriff. It was held that he was not responsible for their value. Duncan v. Harris, 17 Serg. & Rawle, 436, was a writ of error to reverse a testatum fi. fa. issued from the common pleas. A former fi. fa., issued upon the same judgment, had been levied upon two hundred hogs, the property of the defendants, and the levy released by the plaintiff’s attorney. The plaintiff in error, the debtor in execution, prayed that the execution might be reversed and set aside, on the ground that the judgment was satisfied by the first levy. The court refused to set aside the execution, but affirmed it, saying : “ The hogs were levied on by the sheriff, and were released, for what cause does not appear, nor is it necessary to appear, by the plaintiff’s attorney, with directions that the writ should not be executed. The property never went to the use of the plaintiff, but was returned to the defendants. It would be a strange perversion of a principle to convert sueh a — 399 — transaction into tbe satisfaction of a debt.” This case, it will be observed, differs essentially from tbe one at bar. The levy was released with the consent of the debtor, obviously, as it is said the property was returned to him. Whiteacres v. Hamkinson, Cro. Chas. 75, was next referred to, and is to the effect that, if one joint obligor be taken in execution, and the sheriff suffer him to escape, the plaintiff may sue the other obligor, and is not confined to his remedy against the sheriff Unquestionably, a party may pursue each and every joint obligor, till he obtains actual satisfaction. Every presumption of payment in that case, was positively excluded, by the escape of the debtor. Dyke v. Mercer, 2 Show. 394, was, like the last case, debt on a joint and several bond. The defendant pleaded that his co-obligor was sued to judgment, and thereupon a fi-fa.; and that the money was levied by the sheriff The plaintiff demurred, and had judgment; and, says the report, “a difference was taken between this case and where a sci.fa., or debt is brought on the judgment, against the party himself, for there such a plea may be good, for he shall not pay twice, but a co-obligor can plead nothing but satisfaction actually made of the debt.” A case clearly distinguishable fiom the one before us, as will hereafter be shown. Rutland Bank v. Thrall, 6 Verm. R. 237, cited also by the plaintiffs, was where the joint maker of a promissory note was sued. Although he was a joint maker, yet he, in fact, signed as surety for another. Thrall, being an attorney, sued the principal debtor, Holmes, in the name of the bank, and collected a large part of the money, but refused to apply it to the payment of the note. The court say: “Thrall became the principal debtor, having the funds in his hands for the payment of the debt.” “ Had not the plaintiffs their election to proceed against him, — 400 — either as maker of the note, or for money had and received ?” Several other cases were cited, which I deem it unnecessary to comment upon ; they do not vary the aspect of the question from that exhibited by those already referred to. And what do these authorities prove? Do they not show, very clearly, that the ruling in Mountney v. Andrews, and Clerk v. Withers, has been regarded as settled law, from the times those cases were severally decided, until the present day? The doubts which seem to have arisen in the minds of some judges of later times, evidently have proceeded from the language used by the courts in announcing their decisions. Although, as we have seen, the question before the court, was not, in a single case cited by the counsel of either parly, whether a levy merely, upon personal property sufficient, &c. absolutely, and perse, satisfied a judgment, yet the courts have very frequently asserted that broad proposition without qualification. Such proposition it is, that judges have so often and so strenuously combatted. The defendant does not seek here to maintain that proposition, nor is it at all necessary that he should do so, to sustain his plea. The question really presented by every case to which reference has been made, has been, whether a levy upon personal property, sufficient in value to pay the debt, was good ground for opposing a motion for further execution, or a good plea to a sci. fa., or action of debt upon judgment ; — whether, from the allegation of such-levy, with nothing further, a satisfaction should be presumed, and thus the allegation should constitute a prima facie defence. That is the only question here. Under the rules of pleading before alluded to, can any other than an affirmative answer to the question be extracted from the 'numerous — 401 — cases whieb have passed under review? J think not. To that effect, substantially, is Green v. Burke, the case most confidently relied upon, in support of the demurrer. The counsel for the plaintiffs insisted, that the rule in Clerk v. Withers,- could not be sustained, because the reasons upon which it was based were unsound. It will be remembered,- that in many of the cases, the judges assigned as a reason for their opinions, that the defendant lost his goods by the levy, and, therefore, his debt should be deemed to be discharged. If, however, the rule itself be sound, it matters not what reasons were assigned for its adoption. But, I apprehend the effect of the levy to be substantially as stated in the cases. Without stopping to define a levy more particularly, it is sufficient to say, that a valid levy deprives the debtor immediately of the control, and if the' sheriff elect, of the possession, of bis goods ; and ultimately, if pursued, absolutely divests him of his property in them. Precisely as stated in Clerk v. Withers, by Gould, Justice, “ as soon as the sheriff seizes the goods by virtue of the writ of fi,. fa., he gains a special property in them, and may maintain trespass against the defendant, if he' takes them away.” “ So, he may maintain trover against a stranger that takes them away.” The plaintiffs’ counsel also contended, and cited nu-1 merous authorities to show, that in many instances, the principle on which the defendants’ plea rests, cannot be applied ; as, if the defendant become a bankrupt after the levy ; or, if the property be destroyed by inevitable casualty before sale, as by fire ; or if it be restored to the defendant by his consent; or eloigned by him; or, if it belong to a third person, &C. In none of these instances, it was argued, could the levy be a satisfaction of the judgment. The counsel was right, bpyond question. But these, the defendant insists, — 402 — are only exceptions to the rule, and tend, therefore, to establish it. Finally, upon the most thorough investigation I have have been able to make of this question, I am brought to the conclusion, that, as between the creditor and principal debtor, the rule of law is that for which the defendant contends, viz : that a levy outstanding and unaccounted for, upon personal property sufficient in amount to pay a judgment, is prima, facie evidence of satisfaction, and, therefore, constitutes a good plea to sci.fa., or an action of debt on judgment. That such levy is conclusive evidence of satisfaction, is not pretended. A plea setting up such a levy, therefore, if false in fact, may be traversed ; or, if a levy have been made, but not followed by sale and satisfaction, for any sufficient reason, the levy may be confessed, and its legal effect repelled by an allegation of any fact, which, by law, should withdraw it from the operation of the general rule. Thus, simple and direct issues would be formed, easy to be comprehended and tried, and the rights of both parties protected. It now remains to enquire whether the defendant can avail himself of such a defence. The fourth plea avers, that the defendant endorsed the note declared ""on, for the accommodation of the makers, and without consideration, and that the plaintiffs had notice of such facts. Whenever a note or bill is made, drawn, accepted or endorsed, by or on account of a person who has received no consideration for the same, it is said to be drawn, accepted or endorsed for accommodation. Bayl. on Bills, 438. And if such note or bill be negotiated, the maker, or other party for accommodation, and the person who has received value for the note or bill, are considered as standing in the relative situation of surety and principal. 3 B. & P. 363 ; Chitt. on Bills, 443 ; Theob. Pr. & Sur. 180 ; Chitt. on Contr. 534. The defendant, then, — 403 — stands in the relation of a surety to Thompson and Brown, the makers of the note in suit. A surety promises to pay the debt of another person, who is in the first instance liable, in case of the failure of payment by such person. His undertaking, though it may be contemporaneous, is not joint, with that of the principal debtor, but is merely accessory and collateral to it. Therefore, if the obligation of the principal debtor be extinct, that of the surety, or accessory, is extinguished also. .Theob. Pr. & Sur. 1, 2. The surety, consequently, may avail himself of any defence which could be set up by the principal debtor, (except it be merely personal, as a discharge in bankruptcy;) and, in this respect, there is a wide distinction between sureties and joint contractors. Each and every maker of a joint contract, promises, absolutely and unconditionally, to pay the whole debt; therefore, nothing short of actual payment or release, will constitute a good defence to an action against any of them. But very different, as we have shown, is the undertaking of a surety. He promises to pay, only upon condition that the principal does not. If, therefore, for any reason, except as just stated, a recovery cannot Be had against the principal, no more can it against the surety. And a contrary doctrine would, to my mind, be equally absurd and unjust. If the original debt be satisfiedno action can be maintained against the surety, of course; and, whatever, in contemplation of law, makes a' satisfaction • of the debt, and thereby discharges the principal, necessarily extinguishes the liability of the surety. It would be as difficult for me to conceive of a surety’s liability continuing after the principal obligation was discharged, as of a shadow’s remaining after the substance was'removed. Many cases were referred- to -by the counsel of the — 404 — plaintiff in support of his position upon this branch of the case; but none of them, in my judgment, are sufficient for his purpose. The first to which our attention was called, was Whiteacres v. Hamkinson, Cr. Chas. 7-5, already noticed while considering the other branch of this case. That, it will be remembered, simply decides that an escape of one joint obligor, though suffered by the sheriff, is not a bar to an action against his co-obligor. Dyke v. Mercer, 2 Show. 393, also cited, was, like the last case, debt on a joint bond, and therefore not in point. Rutland Bank v. Thrall, 6 Vt. R. 237, was relied upon in the argument of this point also, but I cannot preceive its tendency to fortify ibe plaintiffs position. Thrall, we shall recollect, as attorney of the'bank, collected the money of the principal, and judge Phelps held him liable on the express ground that he had thereby become himself the principal debtor; applying (he familiar principle that as the surety is one who obliges or binds himself on behalf of another, his obligation as surety is destroyed by his becoming himself the principal debtor; for a man cannot be his own surety, say the books. Theob. Pr. & Sur. 2. Churchill v. Warner, 2 N. Hamp. R. 298, it seems, to me aids the plaintiff, as little as the case last refered to. It was an action upon a receipt made jointly and severally by the defendant, and one Turner, for a quantity of hay taken on an attachment against Warner himself. Turner was sued upon the receipt and judgment had against him, and execution levied on his property, but it was never sold or taken from his possession. Warner, the joint receiptor, and in fact the principal debtor, was then sued, and sought to defend the action on the ground of the execution and levy against Turner. That such a defence could not avail him, the principal, as well as joint debtor, is most obvious, and so the court held. — 405 — In Poole v. Ford, 18 Eng. C. L. R. 273, the acceptor and drawer of a bill had both been sued, and judgment recovered against each; the plaintiff took out a fi. fa. and levied on the goods of the acceptor, which he abandoned by agreement with the acceptor, and received from him another security to pay at a future time. The drawer contended that this discharged him. The court doubted, but, “finally determined, that the withdrawing the fi.fa. against the acceptor did not discharge the drawer; and that the rule, that giving indulgence to an acceptor, without the consent of the drawer, discharges such drawer, does not apply after judgment. Here, it will be observed, the execution was withdrawn, with the express consent of the principal debtor, and the goods levied upon, returned to, and received by him ; so that there could- be no pretence of a satisfaction, either by the principal or surety. Ontario Bank v. Hallett, 8 Cow. 194, was next cited. That was an action of debt for an escape from the defendant, who was sheriff of Herkimer county, of one Graves and another. The commitment and escape of the debtors were shown. The defendant then proved that one Sharpe had confessed judgment as collateral security, to the Bank, for the debt; and that, prior to the commitment of the principals, (Graves and the other,) an execution was taken out against Sharpe, and the under sheriff went with it to Sharpe’s residence to make a levy. Sharpe said the farm and property upon it were not his. The under sheriff did not remove the property, or make an inventory even, but told Sharpe he had levied. He informed the plaintiffs agent, that he should proceed no further then, unless indemnified. Nothing further was done under the execution. The defendant insisted that here was a levy on personal property, sufficient to pay the execution ; that the judgment against Sharpe was thereby satisfied; and, — 406 — consequently, the judgment on which the ca. sa. issued, by which Graves had been committed, was extinguished. The plaintiff had judgment against the sheriff, and on a motion for a new trial, the court say: “As to the levy, it is apparent that none was made, or intended to be made; and, if thei'e had been, the 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 debt.” Again, jn the same case, it was said: “ On the collateral security, the plaintiffs might proceed at their election, but were not obliged to hazard litigation for the benefit of the original debtor. 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.” Thus I have briefly run through the cases, on the authority of which, we are called upon to determine, that the defendant cannot set up, by way of defence, an execution and levy upon the goods of the principal debtors, although it might avail in an action against them. As I remarked, at the outset, I think they fall very far short of maintaining the position assumed in behalf of the plaintiffs. The counsel for the defendant cited upon this point, Jones v. Lewis, 4 B. & C. 506. That was an action against a party, who, like the present defendant, had indorsed a note for the accomodation of the maker. The indorsee received from the maker five shillings in the pound, in full of his demand; and he was told by the maker, that the indorser would continue liable for the residue of the debt. The court held the endorser discharged of the entire debt and — 407 — justice Holroyd said: “ Although this be a case where the action is brought against a surety, it must be considered in the same light as if it was brought against the principal. If the original debt be satisfied and gone, no action will lie against the surety.” And so held all the judges. What is the principle of this case? Not, that the indorser was discharged by giving time to the maker, for that was not done. Nor, that the debt was fully satisfied, for only one fourth part of it had been paid. No, the principal is, that the principal debtor having been discharged by the compromise, no action could be prosecuted against him, and therefore none could be maintained against the surety. The substance was taken away, and the shadow vanished’ at the same time. Mayhew v. Crickett, 2 Swanston, 185, was where the creditor took out execution and levied upon the property of the principal debtor, and afterwards, without the knowledge or consent of the surety, withdrew the execution and restored the property to the debtor. Lord Eldon, chancellor, said, “ I think it clear, that, though the creditor might have remained in possession if he chose, yet if he takes the goods of the debtor in execution, and after-wards withdraws the execution, he discharges the surety, both at law and in equity. Bullitt's Executors v. Winstons, 1 Mumf. R. 269, arose upon a motion to set aside an execution, on the ground that a former one, for the same debt, had been regularly issued and levied upon the goods of the movers, who’ were only sureties for the debt, and the property then tauten released and discharged, by one of the plaintiffs, un'«< der a compromise with the principal debtor; to which compromise they were not parties, or in any manner consulted with respect to the same. The court decided that the indulgence granted to Littlepage, the principal’ debt- or, without the consent or privity of Winstons, amounted — 408 — to a release' as to him ; the property once taken upon the execution, being, by the act and consent of the plnintiff, put out of the custody of the law, in which it had before been. It is laid down in 3 Ph. Ev. by C. & H., 9S5, citing 7 Mart. Lou. R. 193, that “there is no rule iti our laws better understood, than that which allows the surety the right of availing himself of the same means of defence, (save those that are merely personal, as a discharge by the bankruptcy or insolvent laws, &c.,) which the principal debtor could resort to.” The rule to be extracted from all these cases seems to me clearly to be the one already alluded to, that whatever, in legal contemplation, extinguishes the debt, as against the principal debtor, is a good defence in a suit against the surely. Having shown, conclusively, as I think, that a levy upon personal properly sufficient to pay the execution, is prima Jacie evidence of satisfaction, and therefore a good plea in an action against the principal, it follows, of course, that the surety may interpose the same defence, when tie is sought to be charged. Our conclusion, then, is, that the demurrer to the defendant’s plea ought to be overruled.* Goodwin, J. dissented. Ordered certified that the demurrer should he overruled. Footnotes [*] See Attorney General v. Michigan State Banke, ante, 360 [*] The recent case of Kershan v. Merchants' Bank, 7 How. Miss. R. 386, seems to sustain the ruling of the court in the foiegoing ease. The abstract of it, contained in Ü. S< Dig. Supp. Vol. 1, p. 782, § LI 12, is as follows: “ The acceptor of an inland bill in Mississippi, became the surety of the payee on a forthcoming bond» Which was forfeited, and an execution levied on sufficient'’ (personal ?) “property of the surety. The payee of the bill assigned the same, but the execution was levied before notice of the assignment. In an action by such assignee, against such acceptor, the defendant filed as a set off the amount of such levy. Held, that the levy Was prima facie satisfaction of the judgment, and entitled, the surety therein to his action against the principal, and rendered the amount of the judgment a good set off against the bill of exchange. Held, also, that if actual satisfaction was not had, owing to a legal discharge of the levy, it should have been shown in avoidance, and — 409 — that the plea need not have averred that the property levied upon had been sold/* To the last point, see also, Walker v. McDonnell, 4 Smedes & Marsh. 118. For other recent cases in which it has been asserted that a levy upon sufficient personal property is a satisfaction, see Young v. Read, 3 Yerg. 297; Camp v. Laird, 6 Id. 246; Carroll v. Fields, Id. 305 In Ordinary v. Spann, 1 Richardson’s R. 259, it was said to be an implied satisfaction ; and in Porter v. Boone, 1 Watts & Serg. 101, it was held to be a satisfaction if the levy be released and become lost to the defendant; but otherwise if the release is made at the request of the defendant. And in Ex parte King, 2 Dev. 341, and Binford v. Alston, 4 Id. 351, it was held that where the defendant has recovered possession of the goods, either with or without the consent of the sheriff, the seizure is no payment, and a new execution may issue. In The People v. Hopson, 1 Denio, 577, ’8, (recently decided by the supreme court of New York,-) the question before the court was as to the authority of a justice of the peace to renew an execution after sufficient property to satisfy it had been levied on,- and was held under the levy, and there was not time enough remaining to advertise and sell. Bronson, C. J., in delivering the opinion of the court, uses the following language: tf It is said that the levy upon sufficient personal property to pay the debt was a satisfaction of the judgment; and consequently that the renewal was void. We have repeatedly held that such a levy does not always satisfy the judgment. Green v. Burke, 23 Wend. 490; Ostrander v. Walter, 2 Hill, 329. And if the broad ground has not yet been taken, it is time it should be asserted, that a mere levy upon sufficient personal property, without any thing more, never amounts to a satisfaction of the judgment. So long as the property remains in legal custody, the other remedies of the creditor will be suspended. He cannot have a new execution against the person or property of the debtor, nor maintain an action on the judgment, noruse it for the purpose of becoming a redeeming creditor. But without something more than a mere levy, the. judgment is not extinguished. There is no foundation in reason for a different rule. The mere levy neither gives any thing to the creditor, nor takes any thing from the debtor. It does not divest a title: it only creates a lien on the property. It often happens that the levy is overreached by some other lien, is abandoned for the benefit of the debtor, or defeated by his misconduct. In such cases there is no color for saying that the judgment is gone; and yet they are included in the notion that a levy satisfies the debt. And where, as in this case, the officer omits to sell within the life of the execution, I see no reason why the debt should be deemed paid, nor why the creditor should not have a renewal of the process. The true rule I take to be this : the judgment is satisfied when the execution has been so used as to change the title, or in some other way deprive the debtor of his property. This includes the case of a levy and sale; and also the case of a loss or destruction of the goods after they have been taken out of the debtor’s possession by virtue of the process. When the property is lost to the debtor, in consequence of the legal measures which the creditor has pursued, the debt is gone, although the creditor may not have been paid. He must take his remedy against the officer, if he has been in fault; and if there be-no such remedy, the creditor must bear the loss. But until the debt is paid, or the debtor has lost his property in consequence of the levy, the judgment remains in force/’ These views of C. J. Bronson are not referred to as conflicting with those expressed in the foregoing opinion, delivered by Justice Ransom. It is admitted in that opinion, that a levy upon goods is not, per se, satisfaction. The ground taken is,- that it is satisfaction prima facie : that is, that from the mere fact that a levy has been made upon sufficient personal property, the presumption arises that such further proceedings have been had, or acts done, as have resulted in the actual satisfaction410 of the debt, or in the extinguishment of the debtor’s liability. From this, the conclusion at which the court arrive seems inevitable; and it seems to me, that the court must have arrived at the same result, even if the defendant had not stood in the relation of surety to the persons whose property was levied upon, but had been a mere co'obligor'or joint debtor. It may not be improper here to suggest, whether the facts alleged in the plea in this case were properly pleadable in bar; or whether they ought not rather to have been pleaded in suspension of the action merely? A plea in bar must be “a substantial and conclusive answer to the action.” 1 Steph. FI. 51. It bars the action forever.- Now suppose that, at the time the plea- was filed in this case, the levy alleged to’ have been made had been actually subsisting — the property remaining undisposed of. What answer could the plaintiffs have made to the plea? Certainly none. They must, therefore, have' allowed judgment to go against them. But suppose afterwards,- and before sale of the property, the defendants in the execution had become bankrupt, and the properly had passed to their assignees, or that for any other good reason tho levy had proved unavailable to the plaintiff. Would the remedy against the defendant have been gone? Would the judgment in the action have been a conclusive answer to a second action for the same cause? It seems to me' not. See remarks of Cowen, J , in Green v. Burke, 23 Wend. 497, 500, 501. It is proper to add that this question was not raised on the argument, (all objection to-the form of the plea being waived,) and was not, therefore, considered by the court.—Reporter.