
    [Pittsburg,
    September 23, 1822.]
    The Bank of Pennsylvania against LATSHAW.
    IN ERROR.
    After a fi. fa. has been levied upon real property, which has been condemned, the plaintiff cannot abandon these .proceedings and take out a ca. sa. without the leave of the court.
    On a writ of error to .Allegheny county, it appeared from the record that the plaintiif below, the Bank of Pennsylvania, levied a fieri on thereal property of the defendant, and had itcondemn-
    ed. A venditioni exponas followed in due course, to which the sheriff returned, “ Proceedings on this writ abandoned by order of the plaintiff’s attorney.” On the same day a ca. sa. was issued, on which the defendant was arrested. To obtain his discharge he issued a habeas corpus, returnable before Judge Wilkins, who, after hearing the relator, remanded him to the custody of the sheriff.
    To reverse this execution,' was the object of the present writ of error.
    
      D. S. Walker and Hopkins for the plaintiff in error,
    argued, that a fi.fa. having been issued and in part executed, no ca. sa. could regularly issue, until the first writ was finally disposed of. 1 Sell. Pr. 525. Young v. Taylor, 2 Binn. 218. In M(Collough v. Ouetner, .1 Binn. 214. it was decided, that when an inquest returns that the rents and profits will pay the debt in seven years, the plaintiff cannot, without the leave of the court, abandon his firsty?. fa. and take out a new one. The levy was prima facie proof at least, that the defendant had property, out of which the plaintiff’s demand might be satisfied, and it is only in the absence of such means of satisfaction, that, the law permits the person to be resorted to. It was not the province of the plaintiffs to decide that the property was so incumbered, as ultimately to make it no satisfaction. If such was their opinion, an application to the court to set aside the levy, would have enabled them to ascertain the fact, and if it had been made to appear so to the court, relief could have been given.
    
      Biddle, for the defendant in error,
    contended, that on general principles, a plaintiff may abandon one execution and take out another. When a fi. fia. has been executed in part, it is only necessary that it should be returned, to authorise a second execution. 1 Sell. Pr. 535. The case of M‘Collov.gh v. Guetner, in which the effect of permitting the plaintiff to abandon the proceedings on his first execution, and take out a new one, would have been to deprive the defendant of the benefit of the inquisition by which he was entitled to preserve his land, is not at all analogous to the present case, in which the land was condemned. If the property (as was actually the case here,) be so covered with older judgments, as to make ,the levy wholly unavailable, are the plaintiff’s hands to be tied, until its' insufficiency be proved by a sale, or the court be called upon to interfere ? The result of such delay would in many cases be the loss of the debt. And who is to judge whether the property affords a sufficient or any security for the debt? Not this court surely, because they have not before them the facts necessary to such an inquiry. If the plaintiffs themselves be not competent alone to decide, they have the sanction of the opinion of the president of the Court of Common Pleas, who on a review of the facts, remanded the defendant to the custody- of the sheriff.
   GibsoN, J.

delivered the opinion of the court.

I think it clear the defendant could not abandon tire levy while it remained in force. In delivering the opinion of the court, in Young v. Taylor, (2 Binn. 218.) it was thought by Mx*. Justice Yeates to be highly questionable, whether a plaintiff, after the defendant had been arrested, and discharged on giving security to apply for the benefit of the insolvent laws, could withdraw his ca. sa. and issue a fi.fa. without the leave of the court. The doubt, I presume, arose from considering the arrest as satisfaction till- the defendant should be finally discharged; and if it were, the assent of the court would perhaps not be a sufficient sanction for the issuing of a new writ. But in the case before us, such assent is of essential importance. The act of the 13th of April, 1807, declares that no ca. sa. shall be issued where the defendant shall have real or personal property to satisfy the debt. Now the return of a levy becomes matter of record which nothing but the judgment of the court can discharge. The plaintiff, at the risque of being answerable for a trespass, in case the defendant should be found to have had property, might have arrested him in the first instance ; but where, from his own showing, there is at least prima facie evidence- of the existence of property,' it would be an abuse of the process-of the court, to permit him to abandon it, and resort to the person. It is unnecessary to determine whether a levy, while it is undisposed of by any further proceeding or order of-the court, is to-be considered as a discharge of the debt: while it remains in force, as it must necessarily be, till it is set aside, a ca. sa. must appear, on the very face of the proceedings, to be irregular on other grounds-; for while the defendant is ostensibly able to make satisfaction, by-Lis-property, it is the business of the court to see that he be not called, on to make satisfaction by his person. The better course here would have been to call on the defendant to show cause why the levy should not be set aside; and if, by reason of prior liens, it bad been found altogether worthless as a means of satisfaction, the rule would have been made absolute : after which the ca. sa. would-have been perfectly regular.

Judgment affirmed and execution reversed.  