
    [Pittsburg,
    September 23, 1828.]
    DUNCAN against HARRIS and another.
    IN ERROR.
    As respects third persons, a levy on personal property is a satisfaction to the plaintiff: but, as between the plaintiff and defendant, if the plaintiff has re» leased such levy, the judgment not being paid, it is no satisfaction.
    To relieve .against an execution unduly issued in the court below, application should, in the first instance, be made there: but, if enough appear on the re~ .cord to decide the. dispute, the Supreme Court will determine it on writ of ■ error. ' . , ....
    Error to the Court of Common Pleas of Westmoreland county.
    
      Harris and Donaldson, the defendants in error, were plaintiffs below.
    This writ of error was taken for the purpose of setting aside an execution, issued at the instance of the defendants in error against the plaintiff in. error, returnable to May term, 1828. The writ of execution issued on the 20th of April, and the writ of error on the 25 th oí April, 1828.
    • The judgment against the plaintiff in error was entered by virtue of a power of attorney, and is not now the subject of controversy. It was entered as of August term, 1817. To Febniary term, ISIS, a writ of fieri facias issued on this judgment, and a levy was made on real estate, an inquisition held, and the property condemned. A writ of venditioni exponas was taken out to May term, ISIS, and on the 19th'of May, 181.8,' on motion and affidavit filed, the sale was suspended until the further order of the court.
    On the 3d of March, 1820, on motion of the plaintiff’s attorney, the order was discharged, and leave given the plaintiff to take out a new execution. “ The property mentioned in this writ having been sold on a, prior judgment, and the monies arising from the sale not.'reaching this.”
    A fieri facias was issued to May term, 1820, which was returned nulla bona.
    
    A testatum fieri facias to the sheriff of Allegheny county, returnable to August term, 1820,. was issued,' and returned nulla bona.
    
    To February term, 1823, a fieri facias, post testatum fieri facias,vías issued. The' return on the docket is entered as follows: — . “Levy made on personal propertj", which was afterwards given up oh the levy being released by Mr ..Armstrong, one of the plaintiff’s attornies. So answers ' ■
    
      “John Nicholls, sheriff.”
    This writ is endorsed with “ mileage and levy, three dollars and twenty-four cents. Levy made on personal property, which was afterwards given up on the levy being released by Mr. Asmstrong, one of the plaintiff *s attornies. So answers '
    
      “John Nicholls, sheriff”
    
      This writ is also thus endorsed: — “ Monday, 25th of November, 1822, at nine of the clock in the morning, this-writ came to my hands, John Nicholls, sheriff. By virtue of the within fieri facias, I have levied on all the right, title, interest, and claim of, in, arid to a certain lot of hogs, containing two hundred, m'ofe or less, of James Duncan. '
    
    
      “George Singer, deputy sheriff.
    
      tcNovember 26th, 1S22.”
    In the hand-writing of the plaintiff’s attorney:-—
    
      “ I, as the attorney of the plaintiff,'did direct the sheriff to return the execution not to be executed before the return-day thereof. And I now authorize the same.
    
      “George Armstrong.-
    
    ‘f 23d of February, 1824.”
    To August term, 1827, a writ of capias ad satisfaciendum was issued., to which the sheriff returned C. C. and committitur, and the defendant was subsequently discharged from' cqstody on habeas corpus. ■' ' '
    '"A testatum writ of execution was issued to the sheriff of Bradford county, returnable to May term, 1828:
    To reverse this writ of .execution, the present writ of error has •been issued out.
    The affidavit filed on the 19th of May, 1818, was as follows:—
    
      James Duncan, the defendant, being sworn, deposeth and saith, that at the court in Kittanning last fall, Mr. Armstrong asked this deponent to assign over to Harris and Donaldson a. receipt of Fhomas Blair, for-notes left in his possession for collection, on J. and S. LatsKaw, and guarantied . by Adam Johnston-to the amount of upwards of one thousand dollars. And the said Harris and Donaldson were to prosecute, or cause to be prosecuted, the said notes to. judgment and recovery. And when the money should be collected, it was to be applied to the payment of the above judgment. That suit had been brought on said notes in Armstrong ■county for the use of the said Harris and Donaldson, and this deponent has no doubt it will be collected. This deponent further saith, that he sold a tract of land- in Indiana county to George Armstrong,Esq. for one thousand dollars. That, hy agreement Mr. Armstrong retained five hundred dollars, to be applied to the payment of judgments of'record, against the said James. Duncan,, and that áll the judgments in Indiana county, except one due to- Matthew Jack of about six hundred and, twenty dollars, which were liens against the, land sold ■ to Mr. Armstrong', have been paid off.
    The plaintiff in error prays, that the testatum writ olfieri facias, issued to the sheriff of Bedford county, may be reversed,and set aside, because the judgment was satisfied by the levy made on a lot of two hundred hogs, by virtue of the execution returnable to February term, 1823. . '
    
      Alexander, for the plaintiff in error.
    .The question is,, whether* if goods are levied' and returned by the sheriff, and there is a release of the levy, by the plaintiff’s attorney, this is a satisfaction of the judgment. Execution once executed, is a satisfaction of the debt, even,'though the property be rescued, just as if the body were taken in execution. 12 Serg. & Rawle, 40. L. Raym. 1072. 4 Mass. 402. 7 Johns. 429. 1 Keb. 551. 12 Johns. 208. Where the defendant is taken on a capias ad satisfaciendum, and discharged on agreement, he cannot again be taken on the same judgment. 4 Burr. 2482. 4 Dall. 215. Barnes’ Notes, 205. 5 Johns. 364. 3 Saund. 344.
    
      Coulter, contra.
    
    I admit that execution executed is satisfaction, but a mere levy is not execution, unless it produce aotual satisfaction.
   Tlie opinion of the court was delivered by

Rogers,, J.

I agree with the counsel for the.defendant in error, that a motion should have been made in the Court of Common Pleas, to set aside the testatum fierifacias, instead of coming into this court for relief, in the first instance/by writ of error. The Court of Common Pleas could have inquired into the transaction in relation to the release of the'execution and.return of the sheriff, vvhich the Supreme Court are in general precluded froth doing. . Enough, however, appears to satisfy us, that the plaintiff’s exception Gannot be sustained. There is no doubt of the general rule in relation to such returns, as between third persons, which are uniformly held to be an extinguishment of the debt. That is. not this ease; for the present is.an attempt by the defendant himself, to have the benefit of the rule, when it is manifest the debt has not been paid. The •hogs were levied on by the sheriff-, and were released, for what cause does not, nor is it necessary to appear, by the plaintiff’s attorney, with' directions, that the writ should not be executed. The property never went to the use of the plaintiff, but was returned to the defendant. It would be a strange perversion of a principle to convert such a transaction into a 'satisfaction of the debt.

Execution affirmed.  