#### *Moore & Nesbit vs. Isaiah Kelly.*

1. A levy upon sufficient personal property *is prima facie*evidence of satisfaction,

2. Where personal property had been levied on (ten years before,) of the defandant’s, and, by the direction of the plaintiffs, the sheriff did not advertise and sell, the plaintiffs will not be permitted to claim money arising from other sales of *the*defendant’s property under junior executions. Their lien upon other property of the defendant is suspended until the first levy is disposed of and found insufficient. Neither can it be restored by their own act in releasing the levy, after the levy and sale under the junior execution.

*Before*Earle, J., Laurens, *Spring Term.,*1842.

This was a rule upon the sheriff of Laurens, for not paying to the plaintiffs money arising from the sale of the defendant’s property under a junior execution. The exe-*351eution of these plaintiffs was lodged in Spartanburg, in December, 1828, and in June, 1829, was levied by the sheriff there, on two horses, as the property of the defendant. The plaintiffs directed the sheriff not to advertise until further orders. In February, 1831, the defendant paid to the plaintiffs thirty dollars of the debt, within a mere trifle of the amount due, and about the same time paid part of the costs. No further proceedings were had on this execution. In 1841, judgment was obtained, and execution lodged, against the defendant, in Laurens, under which the sheriff made the money, by sale of the defendant’s property, and these plaintiffs, in December, 1841, released the levy under their execution in Spartanburg, and claimed the proceeds of the sale in Laurens. Rule discharged.

From the foregoing judgment of the court, the plaintiffs appealed, and renewed their motion in the Appeal Court.

Sullivan, for the motion. Irby, contra.

*Curia, per*

Earle, J.

It is very well settled that an execution once levied upon sufficient personal property, is to be regarded as satisfied, until the levy is disposed of. *Mazyck & Bell vs. Coil,*2 Bail. 101. In *Clerk vs.*Withers, Lord Raymond, 1072, Gould, J., said, “the defendant, by this seizing of his goods in execution, is discharged of the judgment;” and Holt; Ch. J., said, “the defendant may plead “levied by *Ji.*fa.” in bar to an action .on the judgment.” And this would be true, although the sheriff might-waste the goods or misapply the money. If the action here had been upon the former judgment, as a new cause of' action, the plaintiffs would doubtless be permitted to prove that, the horses levied on were not sold by the sheriff, but were, in fact, restored to the possession of the defendant himself, and thus rebut the presumption of satisfaction arising from the levy. Here, the attempt is by rule to obtain funds which the sheriff has made by the sale of other property, upon an execution lodged more than ten years after that of the plaintiffs. By the levy of their execution on two horses, which we are to presume, until the contrary appears, was enough to pay their debt, as that, *352with the interest and costs, did not much exceed thirty dollars, their lien upon other property of the defendant was suspended until the horses were disposed of and found insufficient. Nor could it be restored by their own act in releasing the levy, after the levy and sale under the junior execution. The plaintiffs suspended the sale, by directing the sheriff not to advertize; but they still retained their hold upon the property under the levy, and if their execution is not satisfied, may proceed to retake it, if they can. Motion refused.

Richardson, O’Neall and Evans, JJ., concurred.