#### Hill & Nall v. Samuel Child.

Where the sheriff has two writs *offi.fa.*in fayor of the same plaintiff, one against a principal debtor alone, and another against the same debtor and a surety, and raises money by a sale under both writs, it is to be applied *promtato*both ; and neither the sheriff nor the plaintiff can, by a subsequent application, affect the right of the surety to have the judgment against him discharged *pro tanto..*

At August term, 1829, of Orange County Court, the plaintiffs obtained a judgment against *Thomas Clancy*and *James Child*for $9r9, and also against the same persons together with the defendant as their surety, for the sum of $3283. Writs of *fi.fa.*issued on each of these judgments, returnable to February terra, 18S0, which were levied upon the property of the principal debtors. Writs of *venditioni,*with clauses *oí fi.fa.*issued, returnable to, May term following, upon which the shcriffretumedthat lie had made the sum of $3212 j and the plaintiff’s at, torney gave him a receipt for $2600, stating it to be in part satisfaction of two executions in favor of the plaintiffs. *Mias*writs of *venditioni*exponas, with clauses of *Ji.j'a.*then issued, upon which was made the further sum of $606. After the return of these writs, the sheriff being about to pay the residue of the $3212 made under the writs returnable to May term, and also this sum of $606, to the plaintiff’s attorney, was informed, by him,'that he should apply the payment first to the satisfaction of the small execution, and the residue as far as it would go to the large one to which the defendant, as surety, was a *266party. Tliis application was objected to by the defendant, who insisted that it should be applied *pro*rata, to both executions. The sheriff stated that he was desirous the money should be applied in a manner to release him from responsibility to either of the parties ; and subsequently, the attorney of the plaintiff received the money from the sheriff, and gave him a receipt therefor, stating it to be in full satisfaction of the small execution, and in part satisfaction of the large one. Another /?, *fa.*issued on the large judgment, and the property of *Tin mas Clancy*and *James Child*being exhausted, it was levied upon the goods of the defendant who paid g>ri5, alleging that the application by the plaintiff’s attorney was improper, and that the sum then paid by him was in full of the balance due upon that judgment. If the application made by the attorney was proper, then $200 was still due upon the judgment.

The foregoing facts were stated upon á motion to the County Court, made by the plaintiffs, to issue another execution. But the motion was overruled and the plaintiffs appealed.

His Honor, Judge Swain, on the last circuit, affirm--, ed the judgment of the County Court, and the plaintiffs appealed to this court.

*W. H. Haywood,*for the plaintiffs.

*Badger*and *Winston,*for the defendant.

Rueein, Judge.

If the money raised upon the two executions is to he applied to each in proportion to the debt, that in which *Samuel Child*is a defendant is satisfied thereby, and by the payment of the sum of *$715,*af-terwards made by him. The creditor contends, that his execution against the two shall be first satisfied, so as to throw the whole unpaid balance upon the other.

No authority has been adduced in support of the position ; nor do I perceive any principle on which to place it

It is not the question, what the creditor might have -done, or the sheriff. But the controversy is, what is the effect of what has been done by each of them. No doubt *267the creditor could have enforced the entire satisfaction of the small debt by withholding his larger execution, un- . *'*til that was done. And there is no doubt also, that after both were delivered to the sheriff, that officer miglrthave proceeded to satisfy the whole execution against the three, out of the property of *Samvel Child,*and thereby leftthe «state of the other two open to the other writ. This indeed places a discretionary power in the sheriff’s hands; according to the exercise of which, the one debt will be wholly or partially satisfied. This is necessarily so, where the one writ is against one person, and the other against that person and another ; for each defendant is liable for the whole. And it is a power which the party cannot control by directions. The officer is govered by the mandate and force of the writ. But the sheriff may first seize and sell, under both writs, the estate of him who is defendant in both. If lie does, the estate' of him who is defendant in but one is liable only for the balance duo upon that execution, after the legal application of the money before raised. The question then is, what is a due application of that money ? '

If the two executions were at the suit of different plaintiffs, (on which, by the way, the sheriff has the same discretionary power as that above mentioned,) there is no doubt that each would bo entitled to its share of the money. I can discover no difference, where there is the same plaintiff in both. The writs create certain well known liens, and entitle the plaintiff, where there is conflicting process, to certain portions of the money raised upon the two jointly. If the sheriff seize only the estate of him who is defendant in both, and each has an equal lien, arid is entitled to a proportion of the fund, and sell that estate ; the seizure and sale satisfy both' writs *pro tanto.*If the sheriff thus apply the money, what complaint has the plaintiff ? If they are different persons, manifestly none ; for he whose execution is only against one gets his shai’C of *his debtor’s*estate. If there be the same plaintiff, he has as little r for the estate of him who is the •debtor in both has been applied to each as the law directs ; and the balance upon the execution against that *268defendant and another is satisfied out of the estate of the latter. There could be no action against tlie sheriff for thus dividing the money raised on both, out of the effects of him against whom both run. But if directions from' the party could control, there were none here$ and the sheriff appropriated the money by his return; The subsequent act of the plaintiff, even with the sheriff’s assent, could not alter itbecause the writ was already satisfied *pro*tanto• It is true of debts generally, that the creditor may apply themoney,if the debtor does not direct a special application, to which of the two debtshe chooses. But the very act of raising money on an execution is an application of it to that debt, according to the legal effect of the execution. I say raised on it, because, as I have already remarked, the sheriff *may,*where an execution is against two, satisfy it out of the estate of either. But the creditor, who has two debts, can keep the control of both in his own hands, only by holding up one of the executions. If he deliver both, he places it in the power of the sheriff to act upon both, against the property of him who is defendant in both *;*and the *money*levied on both is equally applicable to both; indeed is applied in the very act of raising it.

Per Curiam. — -Judgment aeeirmer.