
    NOVEMBER TERM, 1844.
    The Planters Bank v. Horatio N. Spencer.
    When two executions issue for the same debt, against different defendants, a levy and sale under one extinguishes the other. And a motion to have satisfaction entered, of the execution so extinguished, is an appropriate remedy. -And an illegal appropriation, by the sheriff, of the money arising from such sale, to junior executions, does not deprive the defendant in the extinguished execution of his right to have satisfaction entered upon motion.
    The judgment of an inferior court is always presumed to be correct, when the evidence upon which it was founded is not set out in the record; but when the evidence is set out, it must be sufficient to justify the judgment.
    If it does not appear how much the property levied on under the one execution actually sold for, it will be error to order a satisfaction of the other to be entered.
    On the 29th day of November, 1836, the President, Directors and Company of the Planters Bank recovered in the Circuit Court of Claiborne county, two judgments for the sum of $3702.66 each ; the one against Horatio N. Spencer as the second, and the other against Robert W. Campbell as the third indorser of the same bill of exchange. Executions were issued on both judgments returnable to the May term, 1837, both of which were levied, and forthcoming bonds taken'and forfeited. Executions were issued on the forfeited forthcoming bonds against H. N. Spencer and his sureties from term to term until the May term, 1842, on none of which was anything made. The execution which issued against Robert W. Campbell and his sureties in the forthcoming bond, returnable to the November term, 1838, was returned by the sheriff, “levied on a lot of merchandize as the property of Robert W. Campbell, which was sold, and the money applied to executions in favor of George W. Edwards for the use of Downer & Co., Andrew Rankin, and Nelson Carleton & Co.” The execution in favor of George W. Edwards, for the use of Downer & Co., was issued on a judgment for $954.06, recovered on the 24th day of May, 1837.; that in favor of Nelson Carleton & Co., on a judgment for $2139.99, recovered on the 30th day of May, 1838; and that in favor of Andrew Rankin, on a judgment for $1159.56, rendered on the 24th day of May, 1836. At the November term, 1840, the Planters Bank moved against the sheriff and his sureties, and recovered $2739.54, being the balance of the penalty of his official bond not exhausted by former recoveries, which amount was credited on the execution against Spencer, returnable to the November term, 1841. At the May term, 1842, Spencer moved the Court to have satisfaction entered of the balance of the execution claimed to be due from him. Upon the trial of this motion, the defendant read the various executions above mentioned, with the several returns made by the sheriff thereon ; and proved that the judgments against Spencer and Campbell were founded on the same bill of exchange. It was also proved, that the sheriff concealed from the plaintiff’s attorney the return made on the execution against Spencer; and he did not know what disposition was made of it, until after he had moved against the sheriff and his sureties at the November term, 1840. Upon this evidence, the Court sustained the motion, and ordered satisfaction of the execution to be entered. To which judgment of the Court the plaintiffs excepted, and have brought the case to this Court by writ of error.
    
      James H. Maury, for plaintiffs in error.
    Exception is taken in this case to the decision of the Circuit Court, ordering satisfaction to be entered on the plaintiffs’ execution. I maintain the exception by two several propositions.
    1st. That under the circumstances of the case, the powers of the Judge were incompetent to extinguish the judgment of the plaintiffs by a summary order of satisfaction.
    The jurisdiction of the Judges of the Circuit Court of questions of fact involving important interests, is becoming so vastly amplified, that it is more a question what they may not do, than what they may do on motion. A Judge of the CircuitCourt might hesitate at a motion to deprive one man of his free tenement, by transferring the seizure of it to another. He might forbear to entertain a motion to transfer a sum of money from the hands of A. into the pockets of B. He might leave an individual in the quiet possession of a bond or promissory note, so long as he keeps it out of Court. But as soon as be brings it into Court, with a view to its enforcement, he subjects it to the hazard of every question that can be suggested by motion ; to the learning or the ignorance, to the integrity or the caprice, of the Judge. Yet, why a money demand should be less protected by the right of trial by jury, after it is matured into judgment, than before, I am at a loss to determine. More than six hundred years ago, it was settled to be law by king John and the barons of England at Runnymede, that “ no freeman shall be taken or imprisoned, or dispossessed of his free tenement and liberties, or outlawed, or banished, or anywise hurt or injured, unless by the legal judgment of his peers, or by the law of the land.” Hume’s England, vol. 1. And our own Constitution declares, that “the right of trial by jury shall remain inviolate.” Dec. of Rights, sec. 28. The Court ordered satisfaction to be entered on the execution of the Planters Bank against Spencer, “ because the money had been made on a prior execution against Campbell for the same debt.” I will show presently that the facts set forth, as the grounds of the order, are wholly untrue. But 1 insist now, that in the spirit of our system, divided into different departments, and these again subdivided into different branches, each operating as a check upon the other, it was incompetent for the Judge to extinguish so large an interest on any state of facts, until the facts were established by the verdict of a jury. Such an end may be attained by allowing the sheriff to amend his return agreeably to facts, and on his responsibility. But a Common Law Judge, deciding the rights of individuals, cannot, consistently with the genius of our institutions, exercise the functions of both Court and jury, either to give or to take away a right.
    But if the Court cannot assent to my view of the law on this proposition, there can be no difference of opinion in regard to the second.
    I maintain, in the second place, that there is nothing shown in the record, that can justify the judgment of the Circuit Court. The Planters Bank obtained judgment against Spencer at November term, 1836, for $3702.66, and sued out her executions against him from term to term till May term, 1842, when Spencer moved for and obtained the judgment of the Court to enter satisfaction on the execution, “ because,” as the order says, 11 the money had been made on a former execution against R. W. Campbell for the same debt to November term, 1838.” It is shown in the bill of - exceptions, that the reason given for the judgment, so far from being supported by the evidence, was in fact untrue. It is shown that the bank sued Spencer as second indorser, and Campbell as third in-dorser of the same bill, and at November term, 1836, obtained a judgment against each of them for $3702.66. It is not pretended that Spencer has paid any part of the judgment against him : and by reference to the execution against Campbell, and the sheriff’s return thereon, it is shown, not that it was satisfied to the extent, of one dollar, but that the sheriff levied on his goods and sold them, and applied the money to the payment of other executions in his hands against Campbell; acting probably on the principle (for sheriffs like to be dispensers of justice), that it was better to apply the means of Campbell to the payment of his own debts, than to the payment of the debts of others : or probably on the principle, that as the bank could resort to two judgments, while the other creditors of Campbell had only one to rely on, he would apply the money to their executions and turn the bank over to Spencer, who was in fact primarily liable : or probably, indeed, on the ground that the executions of these other creditors had really a better title to the money. The sheriff returned on the execution against Campbell, that he had applied the money made by the sale of the goods to three other executions, that is, to one of Edwards, use of Downer, to one of Andrew Rankin, and to one of Nelson Carleton & Co. By reference to the returns on the executions of those gentlemen,' which are shown in the bill of exceptions, it appears that the executions of Edwards and Rankin only were satisfied, to the total exclusion of the other. Now if the full amount of the plaintiff’s execution had been made, and if the plaintiff' had been really entitled to the whole of it, yet the application of it to younger executions against Campbell, would have furnished him no grounds of complaint. And if the sheriff of his own accord, or in concurrence with Campbell, had made such an application of the money, it would still less have furnished ground of complaint to Spencer, since it was Campbell’s money ; and whether paid on the plaintiff’s execution, or on other executions against him, it would have relieved Spencer of no liability ; but in the former case, would only have transferred his liability from the- plaintiffs to Campbell, the subsequent indorser. And even if the plaintiff, in such case, had lost the advantage of priority by neglect, it would not have impaired the liability either of Campbell or Spencer, for the reasons already given.
    But further. On looking into the record, it appears that of the money raised by the sale of Campbell’s goods, a part was applied to pay the execution of Rankin for $1159.50, and costs, rendered 24th May, 1836, six months prior to the date of the plaintiff’s judgment. The application thus far, for ought that appears, was undoubtedly correct. The balance of the money was applied by the sheriff to the payment of the execution of Edwards for $954.06, and costs, recovered 24th May, 1837, subsequent to the date of the plaintiff’s judgment, and amounting for principal, interest and costs, at the time of payment, to about $1100. The amount paid by the sheriff on these two executions against Campbell, furnishes all the evidence we have as to the amount that was made by the sale of Campbell’s goods; and shows that there may have been $1100 that ought to have been paid to the plaintiffs. But Campbell, for aught that appears, may have concurred in the application of the money to the younger execution against him. And yet, because the sheriff paid $1100 to a younger execution, which he ought to have paid to the plaintiffs, the honorable Circuit Court adjudged it a legal satisfaction of the entire judgment of the plaintiffs, amounting with interest at the time of payment to $4300. A statement of the case is equivalent to demonstration. I have hunted in vain for precedent or authority. Such a question was never before offered to the consideration of a Court.
    But it is insisted that the plaintiffs moved against the sheriff for some malconduct in regard to the plaintiffs’ execution against Campbell, and collected of the sureties of the sheriff $2729.54. The fact is true, and is so indorsed by the plaintiffs, on their subsequent executions ; and they have never since sought to collect it again of any person ; yet the motion and order of satisfaction are both of them predicated on the fact, that the money had been collected of the sheriff, but that it had been collected on a prior execution against Campbell. Assuming that the sheriff had collected on the plaintiff’s execution against Campbell 2729.54, and withheld it from the plaintiff until he was compelled to pay it over on motion ; this would surely not have entitled Campbell to a double credit against the plaintiffs, on the ground taken by the defendant, that the sheriff as agent of the plaintiff, had first received it of Campbell, and then that the plaintiff had received it of the sheriff. Or take the case as it really was, that the plaintiff moved against the sheriff and his sureties, and recovered of them $2729 for failing to return the execution. The sheriff, in such case, would be entitled to the money he had collected on the execution, for his indemnity. And if he had not collected as much as he had been compelled to pay, he might use the execution for the balance. See statute in How. & Plutch. 298, sec. 29. So that Campbell could be credited with no more than had been made by the sale of his goods ; and there is no pretension that Spencer occupies a better condition in the case than Campbell.
    I have maintained the positions, 1st. That neither Campbell nor Spencer is entitled to any further credit against the plaintiffs, because Spencer has paid nothing, and what was collected of Campbell is more than covered by the amount paid by the sheriff or his sureties and credited on the execution. 2d. The plaintiffs’ execution should not be charged with the amount paid by the sheriff lon the execution of Rankin against Campbell, both because it is already credited in the sum of $2729, paid by the sureties of the sheriff, and also because it was paid on the execution of a judgment older than that of the plaintiff’s, and entitled to prior satisfaction. 3d. The plaintiff’s execution cannot be charged with the $1100, applied by the sheriff to the execution of Edwards, though issued on a judgment younger than that of the plaintiffs; because, 1st, it was equally a debt of Campbell, and, for aught that appears, the application may have been made with his concurrence or at his request. In such case he would have no right to have it credited on both debts ; and Spencer being a prior indorser, and, in any event, chargeable over either to the plaintiffs or to.Campbell, can entertain no pretensions against the plaintiffs that would be unavailable to Campbell. 2d, because it is also embraced in the sum of $2729.54, which was paid by the sheriff, and is already indorsed on the execution ; and 3d, because though the plaintiff’s execution was older than that of Edwards, yet the plaintiff having the liability of two persons to resort to, and only one of them being liable to Edwards, the plaintiff had a right, and indeed, might have been compelled to resort exclusively to the party who was not liable to the demand of Edwards. 8 Ves. R. 388 ; 1 Madd. Chancery, 251, note. And this more especially since the passage of the act regulating the liability of prior and subsequent indorsers (How. & Hutch. 595,596) ; as Spencer was a prior indorser and subject to a primary obligation.
    But if the Court should dissent from any or all of these positions, and even decide that Spencer should be credited with the $ 1100, paid by the sheriff to the younger judgment, and also with the $2729.54, recovered of the sheriff and his sureties, there would yet be a balance of several hundred dollars remaining due to the plaintiff’s execution. So that the judgment of the Circuit Court against the plaintiff is wrong, though every question that can arise out of the facts of the case should be decided against him.
    
      Henry T. Ellett, for defendant in error.
    The defendant insists that there was no error in the proceeding.
    The motion was entertained by the Court in conformity with a familiar practice, and in the exercise of the ordinary control and supervision of the Court over its own process.
    The judgments against Spencer and Campbell were for the same debt, and a satisfaction of one is necessarily a satisfaction of both. The plaintiffs can collect their debt but once. 3 How. 417.
    The sheriff is the agent of the plaintiff to collect the money on executions in his hands, and a payment to him, whether made in money, or by a seizure and sale of property, is a good payment to the plaintiff.
    The money made by the sheriff out of the property levied on, and tortiously applied to the younger executions of Nelson Carleton & Co. for $2139.99, and G. W. Edwards for $954.06, was more than sufficient to pay the balance of the execution against Spencer. The moment the money came to the sheriff’s hands, the execution against Campbell was so far satisfied, because it was the oldest, and entitled to the money.
    
      The return on the execution against Campbell is this : “ Property sold, and money applied to the payment of executions, G. W. Edwards, use, &c. v. Campbell, Jl. Rankin v. Campbell, and Nelson Carleton-fy Co. v. same, and no more property found, &c.”
    This return is conclusive against the sheriff that he made money enough to satisfy these three executions.
    The return on the execution of Nelson Carleton & Co. is “ property sold and money applied to executions No. 833, 309, 804.” There is no return of nulla bona, and it does not appear that this is not one of those numbered 833, 309, and 804.
    But if the return is taken to mean that the sheriff did not apply the money to this case, it cannot destroy or annul his return on the execution against Campbell, either as to the amount made, or the fact of the application.
    Campbell was not bound to see to the proper application of the money. That was the duty of the plaintiffs, who were entitled to it.
    Suppose the sheriff had made no return on Campbell’s execution, if the money was in fact made, it would not be any the less a satisfaction. If the whole, or any part of the money was made out of his property, he has his action for the amount against Spencer, as prior indorser of the note sued on, and that right cannot be affected by the misconduct of the sheriff, or the negligence of the plaintiffs. And if the plaintiffs are permitted now to make the money out of Spencer, he will be liable to pay it twice.
    That the sheriff concealed his returns, and eventually defrauded the plaintiffs out of their money, cannot affect the rights of Campbell, or of third persons. 4 Mass. R. 403.
    As against Campbell, and the sureties on his forthcoming bond, there can scarcely be a doubt but the execution against them was satisfied to the extent of the money legally applicable to it. Money collected on legal process is in custody of the law, and the law makes the proper application of it.
    So far as the debt is satisfied as to Campbell, it inures as against the plaintiffs, to the benefit of Spencer, and extinguishes the debt as to him, and to that extent he immediately becomes liable to Campbell.
    
      The testimony of plaintiff himself seems to have regarded the debt as settled, for he authorizes the sheriff to return the execution issued to November term, 1841, collecting only the costs.
    The motion to enter satisfaction was Spencer’s legitimate remedy to protect himself against manifest injustice.
   Mr. Chief Justice Sharkey

delivered the opinion of the Court.

Spencer made his motion in the Circuit Court to have an execution satisfied, under the following circumstances : On the 29th of November, 1836, the Planters Bank recovered a judgment against him as indorser of a bill of exchange, and on the same day another judgment against Robert W. Campbell on his indorsement of' the same bill; Rankin had previously recovered a judgment against Campbell, and two other plaintiffs, Carleton and Edwards, subsequently recovered judgment against him. All of the executions were placed in the hands of the sheriff, who levied on a lot of merchandise as the property of Campbell, which was sold, and the sheriff, instead of applying the money to the executions in the order of seniority, satisfied the execution of Rankin, which was the oldest, and the two junior executions, leaving that of the Planters Bank unsatisfied; and this motion was made on the ground that the plaintiff’s execution was in reality satisfied by the sale, and that the appropriation of the money by the sheriff to the younger judgments, having sold under all, was illegal.

As to the law arising on these facts, there can be no doubt. When two executions issue for the same debt against different defendants, a levy and sale under one extinguishes the other, and the Court will order satisfaction to be 'entered. All the executions against Campbell, it seems, were levied on a lot of merchandise, and assuming that the levy under each was on the same property, the sheriff, having sold it under all, had no discretion in the matter. He was bound to appropriate it according to the date of the respective liens, and his illegal appropriation did not divest the plaintiff’s right. On an application to the Court, the proper appropriation would have been ordered ; but instead of pursuing that remedy, the plaintiffs pursued their judgment against Spencer.

The main ground relied on for reversing the judgment, is a want of power in the Court to make the order of satisfaction, and in this summary way to extinguish the plaintiff’s judgment. This, it is insisted, was an infraction of the right of trial by jury. There does not seem to have been any fact in the case which required the intervention of a jury. Nothing was disputed. The evidence consisted of the executions and the sheriff’s return on them. The return of the sheriff, who is an officer of the Court, is always deemed sufficient to justify the summary action of the Court, when it has the power so to act. There are many questions which may be decided by the Court in a summary way, and in such cases it usually has power to hear evidence on which to found its judgment. A Court always has power to prevent the abuse of its process, and it would be an abuse of process for a plaintiff, having two judgments for the same debt, against different defendants, to enforce collection against one, after satisfaction by the other. In such cases a motion to have satisfaction entered is an appropriate remedy. It is not unusual to sustain such a motion on mere affidavits. 20 Johns. 294. The return of the sheriff is better evidence than an affidavit; it gives a remedy against the sheriff.

But it is also said, that the judgment is not supported by the evidence, inasmuch as it nowhere appears what sum the property sold for. There is force in this objection. It seems that the Court acted exclusively on the returns of the sheriff, or at least, that they furnished the only evidence of satisfaction. There is nothing which shows that the property sold for enough to satisfy even Rankin’s execution, which was on the oldest judgment. The executions may have been satisfied by voluntary payment. Ordinarily we must presume in favor of the judgment of an inferior court, and that the judgment was justified by the evidence, when it does not appear what the evidence was ; but when the evidence is placed before us, then it must appear sufficient to justify the judgment. The Court was not justified in ordering satisfaction to be entered, without evidence that the amount of sale was sufficient for that purpose.

Another ground taken is, that the sheriff concealed from the plaintiff the disposition which he had made of the money. This could not have happened without the plaintiff’s negligence, and’ it therefore furnishes no excuse. If the sheriff failed to return the execution, tbe plaintiff had the power to coerce him to make his return. But his-return really bears date of the return term, and there ■is no evidence showing that it was iii fact not then returned. It was the plaintiff’s duty to have examined the return. But, for the error above mentioned, the judgment must be reversed, and the cause remanded.  