Hoyt v. Hudson — 12 Johns. 207

Majority

p. 207

Hoyt against Hudson.

Headnote

where an om-""¿d,binder in pgrty sufficient to satisfy it, he cannot make a second levy.

If an officer, on levying an Uvmuhe goods son^on h?sgivThemov amuute0f the carmbtt°nLfterwards take oilier goods of the defendant in execution.

And in such case it ismaterial'8 m" property oífg;. "erí sufficient sa,t:isf? the pot; or that be had been una hie to recover tuíreceipí °n

IN ERROR, on a bill of exceptions, from the court of com,inon pleas of the county of Otsego. This was an action of trespass, brought by Hudson against Hoyt. . The declaration contained several counts, both, in trespass de bonis asporiatis, J x and for an assault and battery of the plaintiff. The defendant i r pleaded not guilty.

It was then proved, by the plaintiff below, on the trial, that the defendant below,, who, was a constable, had taken the horse, saddle, and bridle of the plaintiff. The defendant then proved,. that he took the goods by virtue of an execution, dated the 15th July, 1813, in favour of one Higinbotham against Hudson, the plaintiff below, issued by one Kaple, a justice of the A x ° peace in Otsego county, for twenty-two dollars and twenty-five .cents, including costs. It appeared that the property was taken the last of July or first of August, 1813, and had been levied on previous to the taking proved by the plaintiff. The plaintiff then proved, (the defendant excepting to the admission of the testimony,) that the defendant had before taken a sleieh or cutter, the property of the plaintiff, and had taken a receipt « - T7- I . , . T . __ _ , _ r of Ebenezer Hudson, in which receipt Hudson had agreed, for value received, to deliver the cutter at a day and place mentioned in the receipt, orpay the defendant the sum of twenty-two dollars and twenty-five cents. The defendant then offered to prove that the cutter was not worth more than seven dollars; font the testimony was objected to, and rejected by the court; •and the defendant excepted to the opinion of the court.

The defendant thereupon proved, that the cutter was not delivered up. at the time and place mentioned in the receipt, and that he commenced .an action oil the receipt against Ebenezer Hudson, in which he wag nonsuited, by reason of his being unable to prove the hand writing of the defendant in that suit; and that he afterwards took the goods above mentioned. The plaintiff then offered to prove, that since the commencement of this suit, the defendant had commenced an action on the receipt, and recovered and collected the amount thereof from E. Hudson; the evidence was objected to, but admitted by'the

p. 208

couri:> as an answer to* the testimony given by the defendant relative to the former action against E. Hudson.

The court thereupon charged the jury, that inasmuch as before the taking of the horse, Sec. the defendant had taken th© cutter, and had also taken the receipt, above mentioned, from E. Hudson, and time having clasped before the taking the horse, Sec. the receipt ought to be considered as a satisfaction of the execution, as it respected the defendant, and that the constable had no right, afterwards, to take any other property of the defendant on the execution, and therefore the plaintiff ought to recover for the value of the goods. To this opinion the defendant excepted: and the jury found a verdict for the plaintiff for 51 dollars.

Hammond, for the plaintiff in error.

Van Vechten, contra.

This case comes before the court on a writ of error to the common pleas of Otsego county, upon a bill of exceptions tendered at the trial. The general principle adopted by the court below was correct. When 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. This principle appears to be well settled. In the case of Clark v. Withers (2 Ld. Ray. 1072. 1 Salk. 322.) it was ruled, that when a defendant’s goods are seized on a fi. fa. the defendant is discharged. And im the case of Ladd v. Blunt, ( 4 Mass. Rep. 403 .) it is expressly decided, that when goods sufficient to satisfy an execution are seized on a fi. fa. the debtor is discharged, even if the sheriff waste the goods, or misapply the money. The same principle is adopted, and, indeed, carried a little further by this court, in Reed v. Pruyn & Staats, ( 7 Johns. 428 .). where it is held, that a sheriff cannot take a bond or other security on a fi. fa. and still hold the execution in his hand, and use it afterwards to enforce payment. According to the principle here recognized, it was immaterial whether the property first levied upon was sufficient to satisfy the execution or not, for upon such levy the constable took security for the debt; and to which security he actually resorted. His failure to recover in the first instance, arose from his own negligence in not procuring testimony to prove

p. 209

the hand-writing of the surety. And although the testimony, showing that the plaintiff had, since the commencement of the present suit, recovered against the surety the amount of the execution, might not be strictly admissible, yet it was perfectly immaterial, and could not alter or affect the merits of the defence set up on the other grounds. The judgment of the court below must accordingly be affirmed.

Judgment affirmed»