#### Strong and Havens *against*Linn.

in CASE.

Where sheriff *^oTfifa*levies on, and ant’s gowisfif plaintiff, in defeiidanttake with a ca. *sa.*Wm,1h?shirWeto^aid^ plaintiff for madTM°(a) Witness, Evidence.

TRIAL, before Justice *Southard,*at the *Sussex*circuit, in 1818. Rule to shew cause why a new trial be not granted, at *February ;*and argued at *September,*1819.

The acti°n was brought against the defendant, sheriff of the county of *Sussex,*for making a false return, and n°t making and paying the money, upon an execution, in favour of the present plaintiffs, against *Jacob Kerr.*The facts, as they appeared at the trial, were, in substance, :

A *ft. fa. de bon. et ter.*in favour of *John Barnet,*against *&err’*f°r $676, and returnable to *November*term, 1814, was put into the hands of *B. T. Hunt,*the deputy sheriff. ^fter another *fieri facias,*in favour of the plaintiffs, for $579.46-, returnable to the same term, was delivered to *Hunt.*At the defendant’s request, *Hunt*levied on, and sold his real estate; paid *Barnet’s*execution; and in part, *921satisfied the plaintiffs’. At a sale of part of the land, *Barnet*bid $2500, but refused to comply with his bid : it was again sold, and bid to $302.50; and other land, to $90. *Kerr*requested, and urged the sheriff, to sue *Barnet,*for not complying with his bid; and he did so, upon *Kerr’s*giving him bond, with security, to indemnify him against the costs of the suit. After trial, verdict and judgment were rendered, in favour of *Barnet.*

A third *fieri facias,*against *Kerr,*in favour of *J. Armstrong,*esq., for $2145.23, was delivered to *Hunt,*returnable to *May,*1815, and levied on personal property. At the sale, under this *fieri facias, E. Green,*former sheriff, claimed the property, in virtue of a *fieri facias*in his hands: whereupon, *Armstrong*agreed *to pay him the balance due, of about $60, and *Hunt*sold the goods, and *Armstrong*purchased them, to the amount of $562.50; and, at the foot of a list of the articles, made by *Hunt,*put an assignment of his right therein, to *Thomas Bull-man,*and gave *Hunt*a receipt, on his *fieri facias,*for the amount.

The defendant offered to prove, that after the facts before stated, had taken place, the present plaintiffs sued out a *ca. sa.*and arrested *Kerr,*and before he was confined, directed him to be discharged, and brought the present action against the sheriff, because ho had not applied the proceeds of the sale, of personal goods, to their execution. But the evidence was objected to, and the judge sustained the objection. The defendant also offered *Armstrong*as a witness, to prove, that the sale on *Green’s,*and *Hunt’s,*executions, were advertised at the same time, and that he, *Armstrong,*agreed to pay *Green’s,*if they would let the property go to his execution ; and that it was credited on his. The witness being objected to, wras rejected. *E. Green,*was then sworn, and proved the same facts, and that *Armstrong*paid him $60, the balance due on his Jim *facias,*and took the same on himself.

The defendant claimed, to have deducted, from the amount of sales to *Armstrong,*the costs on the suit against *Barnet,*on his bid. But the attorney of the plaintiff, in that suit, declared that he had relied upon the bond taken, and was satisfied, by it, for the said costs, although *922no payment had been made, nor receipt given; and the declared it as his opinion, that the costs ought not fog deducted.

The plaintiffs agreed to deduct, and did deduct, from their claim, on the amount of the goods sold, the $60, claimed by, and paid to *Green,*on his *fieri facias,*and the jury rendered a verdict, in their favour, for the balance.

*Halsey,*in support of the rule, argued.

1. That the sheriff was bound to sue *Barnet,*and therefore entitled to retain the costs, out of the balance of the property. That the plaintiff declared himself satisfied, made no difference ; until a release was given, a liability to pay, was sufficient to authorize him to retain. He had especially a right to retain his own costs, which he had paid out. 2. That Armsirfmghad no interest in the suit. He was entitled to the money he had received. 3 *Bur.*1354. The sheriff *knew the facts; was bound to see that he paid, to the right person, and he could not recover it back, as paid by mistake. 1 *Esp.*5, 6, 7. *Armstrong*could, in good conscience, retain it; and is in the situation of every other purchaser, at sheriff’s sale. 3. The suing out of the *ca. sa.*and the discharge of the defendant, satisfy the plaintiffs’ judgment, and they can have no further, or other claim, against the defendant, or the sheriff. 4 *Mass.*402. 3 *Mass.*561. *Imp. PraC.*269, 270. *Barnes’ Notes*205, 376. *Cowp.*72. 1 *T. R*273. 3 *John.*364. *Coxe*160-2-4. 2 *Sw. Sys.*281.

*Attorney-General,*in answer.

1. The claim, as to costs, was not a legal ground of off-set; the sheriff had not paid them; and a liability to pay, is not sufficient. 2. He had no right to prosecute the suit, either of his own accord, or at the instance of *Kerr,*unless he looked to *Kerr*to indemnify him. 3. The attorney of the plaintiff, freed him from all liability to pay.

2. As to *Armstrong’s*competency. 1. His evidence was to support his own claim. 2. The money may be recovered from him, as paid by mistake, *(Esp.*2) or on the bill of sale; and the receipt, on his execution, will be no *923bar, 3. His testimony was wholly immaterial. And 4. Justice was done; the credit was allowed..

3. The issuing of the *ca. sa.,*was induced by the false return of the sheriff, stating that there were no goods or lands. 3 *Mass.*561. And the doctrine, now contended for, is not true. 5 *Co. R.*57. 2 *W. Bl.*1235. 4 *Bur.*2422. 1 *Chit.*360. *Coxe*157.

Opinion of the court was expressed by the Chief Justice.

(a)

*Miller vs. Miller, ante 508.*See *Den vs. Morris, 3 Hal. 215.*

Kirkpatrick C. J.

This is a motion for a new trial. The substance of the case, omitting immaterial circumstances, is this:

*Havens*and *Strong*had an execution against one *Kerr,*issued out of the Inferior Court of Common Pleas of the county of *Sussex,*returnable to *November*term 1814, for the sum of $597.46; upon this, and a prior execution, in his hands, returnable to the same term. *Linn,*the then sheriff, by the request of *Kerr,*levied upon and sold his real estate, and paid the proceeds thereof upon those executions, according to their priority, leaving a balance due, upon that of the plaintiffs.

After this, one *Armstrong*obtained a judgment against the same *Kerr,*for $2165.25, and sued out execution thereupon, returnable to *May*term 1815; upon which execution, the same sheriff seized and sold certain goods of the said *Kerr,*then found, to the amount of $500, and paid the same to the said *Armstrong.*

Subsequent to all these proceedings, *Havens*and *Strong*sued out a *ca. sa.*for the residue of their judgment, upon which *Kerr*was arrested and taken into custody, *and was afterwards discharged by their order.*They then brought this action against the sheriff, for the said residue of their debt, because he had neglected or refused to levy upon and sell these goods by virtue of their execution, and to apply the proceeds thereof towards the payment of the same, alleging that the said goods were then the property of the said *Kerr,*and in his hands; that they were bound by their said execution, and ought to have been levied on and sold for their benefit.

Upon the trial of the cause, we are to presume these allegations respecting these goods, were made out to the *924satisfaction of the jury, for there was a verdict for the And the question is, whether upon this state Gf facts, they were entitled to recover against the sheriff, after having so taken the defendant upon a *ca. sa.*for the same residue, and then discharged him out of custody ?

The case of *Ustic*v. *Allen,*in this court, *(Coxe*168) I think, settles this question, and even goes further. There the sheriff had rendered himself liable to amercement, for the debt and costs, before the *ca. sa.*and discharge ; and upon a motion to amerce, which aims at the punishment of the officer as well as the payment of the debt, it was adjudged for the sheriff, for the'debt was satisfied by the taking of the defendant’s body.

But as there seems to be some doubt about the principles of the law, upon this subject, it may be well to look into it a little.

We will take it, that the sheriff had rendered himself liable for this residue, and that, being so liable, the plaintiffs took out a *ca. sa.*against the defendant, and caused him to be taken into custody, and then discharged him ; and the question will be, whether they can come back upon the sheriff?

If a man be arrested upon a *ca. sa.,*he shall be considered as in custody, immediately upon the arrest, and before the return of the writ. 1 *Rol.*901. Whether *Kerr,*then, had been actually locked up in the prison, or not, and whether the plaintiffs, upon the return of the writ, had entered a *committitur,*or not, makes *no difference. As soon as he was arrested, theca, sa. was executed; he was in custody upon it; the- plaintiffs had the effect of it.

Now, if a *ca. sa.*be executed, that is sufficient in law, for the whole debt; for *corpus humanum non recipit estimationem;*so that if you take the body at all, you take it for the whole debt. *Hob.*52. Again. A *ca. sa.,*as respects the party against whom it is taken, is a full satisfaction by force, act, and judgment, of law ; so that against him and his representatives, there can be no other; for when the plaintiff hath begun and chosen the body, he can resort to no other, execution against the self-same party. *Hob.*59. It is a complete satisfaction, in law, of that very *925suit or judgment, in which it is taken. *Ibid.*It is true that the common law has been altered by statute, in this respect, in cases where the defendant escapes or dies in prison; there, by the force of the statute, there may be a resort to the goods, but in all other cases, and especially a case like this, it still remains in its full force. So far as respects *Kerr,*then, and so far as respects this residue, as a part of this very suit and this very judgment, this *ca. sa.*was a complete satisfaction.

It must be admitted, however, that though this be so, yet it is not a satisfaction in the same sense, and to the same extent, as the payment of the money would be ; it is not a satisfaction to all purposes, and in favour of all persons. As if two be bound in a bond, jointly and severally, and there be several judgments against them, and one be taken on a *ca. sa.,*that cannot be pleaded in satisfaction, by the other, though it be for the very same debt. *Hob.*60. So if two commit a trespass, and there he several judgments, and one be taken upon a *ca. sa.,*the other cannot plead this in exoneration of himself, though the plaintiff has but one satisfaction. But this regards the *mere taking*of the body only, without regard to ulterior proceedings ; for, even in these cases, if one be actually taken, *and then suffered to go at large, by the license or command of the plaintiff,*it may be pleaded by the other, and shall be a complete discharge. *Oro. Gar.*75.

The case of *Hayling*v. *Mullhall,*(2 *Black.*1285) has been cited, as containing a doctrine contrary to this last. There, the endorsee of a bill of exchange sued the last endorser, and took his body in execution, and afterwards let him out on a letter of license ; then he sued the first endorser, and it was pleaded, that *the debt was satisfied by the imprisonment of him that was first sued, and held to he a good plea. And, though I do not very well see the force of what the judges there say, in support of their opinion, yet there was this good reason for it, that it was of no consequence to the *first*endorser, whether the *last*was discharged or not; it did not at all affect his ultimate liability; he had endorsed the bill, and he must answer for the amount to somebody, if the drawer did not pay. But if the endorsee had first sued the drawee of the bill, *926upon his acceptance, and taken his body, and afterwards discharged him from imprisonment, and then sued this endorser, would it not have been otherwise ? Certainly; for an arrest and discharge of the original debtor would have been a satisfaction, as to him, and, of course, to all the endorsers, for they could have no resort to him after-wards. But whatever may be said with respect to liabilities, upon bills of exchange, the general doctrine is, that wherever the actual payment of the money might be pleaded *as a satisfaction,*and *as a total discharge of him that pleads it, a voluntary discharge upon a ca. sa.*may also be pleaded ; and the party against whom it is pleaded, shall not be permitted to aver against it, that the money has not been actually paid. *Whitnax*v. *Hankinson, Cro. Car.*75.

If, therefore, we view this action as founded upon the judgment against *Kerr,*and as a means of compelling the payment of this residue, out of his property, the plaintiffs must fail, for that judgment is already satisfied by the body. If we view it as founded upon the liability of the sheriff, for his neglect of duty, without relation to *Kerr’s*property at all, the plaintiffs still must fail; for the sheriff, having rendered himself answerable for the debt, stands in the nature of a security only, or; if you please, in the situation of a co-obligor, jointly and severally bound, and, therefore, may plead the discharge, and it shall be a good plea.

In whatever light ■ we view it, therefore, I think the plaintiffs must fail, and, therefore, that the verdict must be set aside.

Rossell J.

The case in *Coze*168, is conclusive.

Southaed J.

dissented. This case comes up, upon objections to opinions delivered by myself, upon three questions, which arose at the trial. Upon the best view which I have been able to take of the case, and the argument delivered upon the rule, I still remain of the same opinion, which I expressed, upon all the points.

. *The suit was brought by *Strong*and *Havens,*against the sheriff, for neglecting to levy, make, and pay over, *927the money due upon an execution, in their favour, against *Jacob Kerr;*and so far as the facts appeared, at the cir-’ cuit, and are necessary to a correct understanding of the points raised, they are as follows. Pour writs of *fi.*fa„ *de bon. et ter.,*were regularly issued against *Kerr,*and came into the hands of the sheriffs, in the following order : one to sheriff *Green;*and one in favour of *John Barnet,*one in favour of *Strong*and *Havens,*and one in favour of *John Armstrong,*to sheriff *IAnn.*Regular levies were made and returned, upon all these writs. *IAnn*received from *Kerr*$450, and applied it to *Barnet’s*excution, which left something more than $200 due upon it. After this, at the request of *Kerr,*his real property was advertised by *IAnn,*and struck off, upon the bid of *Barnet,*for $2500, but he gave notice, that he had bid under a mistake, and should not abide by it. The sheriff exposed the land a second time, and sold it for $392.50; and discharged *Barnet’s*execution. He also exposed *Kerr’s*personal property, and sold it for $562.50. *Armstrong*was the purchaser, and gave an acknowledgment of the purchase, on the list of the articles, and a receipt for the amount, on his execution. It was of this payment of the money to *Armstrong,*that *Strong*and *Havens*complained, their execution being the oldest.

After the plaintiffs had rested, the defendant offered to prove, that after the sale of *Kerr’s*personal property, to *Armstrong,*and taking his acknowledgement and receipt, a *ca. sa.*was issued in favour of *Strong*and *Havens,*and *Kerr*taken, by the sheriff, but discharged, by their order, before he was confined ; and, after his discharge, the present suit was brought. This evidence, after argument, was overruled.

*John Armstrong*was offered as a witness, to prove, that at the sale of personal property, *Green,*who held the first execution, demanded that it should be first satisfied; and that he, supposing that the proceeds of the sale, would go to his execution, agreed to, and did pay *Green,*the amount of his claim, which was about $60. He was objected to, and declared by the court, to be an incompetent witness. Those facts were then all proved by *E. Green,*and the plaintiffs admitted, before the jury, that it was proper to *928deduct the $60, out of the amount for which the goods sold', and for which they claimed a verdict. The defendant also, ^claimed allowance, for the amount of the costs, upon an action, by the sheriff, against *Barnet,*upon his bid at the first vendue of the real estate. It was agreed, by the parties, that after *Barnet*refused to take the land, at his bid, *Kerr*applied to the sheriff, to bring suit against him, and, with good security, entered into a bond, to indemnify him from any costs, which should, be created by the suit. The action was accordingly prosecuted, and verdict and judgment rendered, in favour of *Barnet;*and the attorney of the sheriff, declared, in the presence of the court and jury, that he relied upon the bond which had been given, was satisfied with it, and had no claim upon any one, for any costs in that action. Upon these facts, it was submitted whether these costs ought to be proved, and deducted from the balance; and the judge declared it as his opinion, that they ought not. There was verdict for the plaintiff, for the amount of the sales of personal property, after deducting what was paid to *Green.*

I will notice the three objections in their order. 1. There was error, in not directing the costs, of the suit of *Linn*v. *Barnet,*to be deducted.

I do not understand, that a sheriff is bound to bring suit and expend his own or the plaintiff’s money, in order to enforce every questionable bid, which may be made at sales of property, by him. Neither law, nor the interest of parties, requires it. He may refuse to sue, until an indemnity for the costs, &c., be given to him; and if he does so refuse, and takes a bond to indemnify him, I do not perceive by what right he can desert that bond, and claim the costs from another source. In this case, the defendant seems to have been aware, that the bid of *Barnet*could not be enforced, and he, therefore, refused to attempt to enforce it, until *Kerr,*the person whose property was sold, gave him security for the costs. Why then should these costs be taken out of the amount which was coming to the plaintiffs ? The suit was not brought at their request, but at the request of *Kerr.*The plaintiffs gave no promise of indemnity. Why should they pay for *Kerr’s '*acts ? Besides, there were really no costs to come out of *929the sum made by the sale of the property. The attorney of the plaintiff, in that suit, had looked to his bond, was satisfied with it, and acknowledged that no costs were due. How, then, was it possible that any should be deducted ?

2. As to *Armstrong's*interest. The plaintiffs *Strong*and *Ha*vens,*claim the amount of certain personal property, sold by the sheriff, and bought by *Armstrong.*At the foot of a schedule, or list, of the property, so sold, Arm*strong*signed an acknowledgement that he bought this property, and stated the sum given. This sum was endorsed on his execution, and he thus received the benefit of it. If he was not entitled to receive it; if it was paid to him by mistake ; it may certainly be recovered from him, upon the plainest legal principles. But the question, whether he was entitled to it? depends, altogether, upon the fact, whether *Strong*and *Havens*recovered in this action or not. If they were entitled to it, he was not; if they were not, he was. Their right to it was to be settled in this action, and to be more or less governed by this evidence. To me, therefore, the interest seems positive, direct, and immediate. If *Strong*and *Havens*recover, he must refund the money; and he may be compelled to do it, either upon the general principle of money received by mistake, or by force of the acknowledgement, at the foot of the articles bought.

But even if this were not so, I am not satisfied that a new trial should be granted. The facts, which he was offered to prove, were amply proved by the most unexceptionable evidence, afterwards, and defendant had the benefit of them.

3. As to the effect of the *ca. sa.*This *ca. sa.*was issued after the execution, which was the foundation of this suit; and after the default of the sheriff; and, also, after the sheriff had the money in his hands. Now, whatever may be the law, as to issuing a *fieri facias,*after the body has been taken under a *ca. sa.;*surely the issuing of a *ca. sa.*can neither divest out of the plaintiff, rights which are vested in him, nor save the previous liabilities of the defendant, and justify him, in keeping money, to which he had no right, but which he had made for another. If the *930execution had given the plaintiffs a right to the money; • if the money were already legally theirs; however *Rear*might complain of the imprisonment of his body, that imprisonment would not restore to him his property. If the sheriff had subjected himself to prosecution; if he had the money in his hands, a *ca. sa.*never could relieve him from that prosecution, and authorize him to keep the money; especially when the *ca. sa.*was issued under a mistake, created by his conduct, in making an incorrect return, and paying the money to a wrong person. Besides, the money being due on the yim *facias, of*the plaintiffs, if he is not obliged to pay the *money to them, I know not who has a right to call on him for it. And, in this case, the plaintiffs seem to me, not chargeable with any intentional wrong to *Kerr,*in suing out the *ca. sa.*They were deceived by the sheriff, and discharged him as soon as they knew the course which the sheriff had taken, and that their money really had been made, out of defendant’s property.

I do not preceive, that this case can be affected by the fact, that *Armstrong*agreed to satisfy *Qreeris*execution. What he paid on that execution, was first to come out of the property sold; and was, therefore, properly credited by the plaintiff, in this suit; and, by that credit, it was restored to *Armstrong ;*for he was thus permitted to retain so much on his execution. And even if this were not so, the rights of the plaintiffs would not be altered. If a third person, either through friendship or interest, chose to satisfy a previous execution, it did not lessen the lien of their execution. It still bound and held the property, and the only effect of such a procedure would be, to free the property from previous liens, and leave it unincumbered for the satisfaction of this.

I, therefore, see no reason why the verdict should be set aside.

New trial granted.