In re King, 13 N.C. 341, 2 Dev. 341 (1830)

June 1830 · Supreme Court of North Carolina

13 N.C. 341, 2 Dev. 341

In the matter of Samuel King and James M. Morrison,

A seizure of goods upon an execution is a constructive payment only where unless so considered an injury will occur — as where the Sheriff has seized but will not sell.

But in all cases 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 — and this as well where there are several Defendants, as where there is but one.

This was a petition for a writ of Supersedeas. The petition set forth the fact that the petitioners had been sureties for one Cooke, in an appeal to this Court — that the judgment below had been affirmed, and judgment entered up against them — that execution issued, which was levied upon sundry slaves the property of Cooke, sufficient in value to satisfy it — that the Sheriff took a forthcoming bond for the delivery of the slaves at a day appointed for the sale of them — that Cooke, the Defendant in the execution, had forfeited that bond ; and that the Plaintiff in the execution had proceeded against thg property of the petitioners.

jYash & Hogg, for the Petitioners.

Devereux, for the Plaintiff in the Execution.

Ruffin, Judge.

The idea upon which tills petition goes, is, that the seizure of property under a fi.fa. is a discharge of the debt. It is constructively so in certain cases; that is, where the Sheriff really takes sufficient to pay the debt, and will not dispose of it $ and to (frbt on the judgment it may be pleaded. For it would be wrong to enforce the judgment by a second suit, and also keep the property on Cue first execution. But if the Defendant was never deprived of his property by the Sheriff, or if he was, and has got it back again, either with or without the consent of the Sheriff, it would be monstrous to say that in such a case, the Defendant had paid his debt. The levy on property is not actual payment, which the law always aims at. If is only constructively so, to prevent wrong. It is deemed a payment in those cases, where if it were riot, the Defendant would be twice deprived of his property on the same judgment. In all other instances, it is no payment. Without citing other authorities, tiiese positions will sufficiently appear by the cases of Clerk v. Withers, (1 Salk. 322,) and Taylor v. Baker. (2 Mod. 214.) It will be seen from this, that it must follow', that the petitioners can have no relief; for the Plaintiff lias received his money from no quarter. All the Defendants are but one to this purpose. Payment by one is payment by all; but there must bo payment by some one. Here there is pone.

June, 1830.

Per Curiam.- — Let the petition be dismissed.