
    John Peay, Administrator of Samuel M’Creary, v. Joseph Fleming and others, Creditors of Samuel M’Creary.
    If an administrator, on a sale of his intestate’s property, take any other security than that required by the terms of the order for sale, he becomes personally responsible, and if loss ensue it must fall on him. [*98]
    A levy is ■ prima facie evidence of satisfaction: — but this-presumption maybe re- ' butted by showing that satisfaction in fact, has not and could not have resulted from the levy by reason of senior executions which would have covered a larger amount than the value of the levy, 
       [*99]
    Chester. — Before Chancellor De Saussure, July, 1834.
    Bill to marshal assets. The bill was filed to compel the creditors of the intestate to come in and establish their demands, and receive their respective proportions of the assets. Under an order of the Court, the plaintiff was required to account for his administration, and the Commissioner, in stating the account, deducted from the amount of the sale bill seventy dollars, the price of a horse sold to one M’Sherry, which had not been collected. The Commissioner, also under the order of the Court, made a report on the execution of Eli T. Hoyt, one of the creditors of the intestate, recommending that it should be paid out of the funds in hand.
    #qo-| *That part of the report disallowing the charge against the J administrator for the price of the horse, was excepted to by the creditors generally, and the exception was sustained by the Chancellor. And the other creditors excepted to so much of the report as recommends Hoyt’s execution to be paid; but this exception the Chancellor overruled.
    
      Both parties appealed. The facts connected with both questions are stated in the following opinion of this Court.
    
      Clarice and M’Dowell, for the plaintiffs.
    
      Williams, for the creditors.
    
      
      
         See Davis v. Barkley, 1 Bailey, 140; Mazyck and Bell v. Coil, 2 Bailey, 101.
    
   O’Neaed, J.

The first part of this case relates to the appeal on the part of the plaintiff. He contends that he is not liable for the price of a horse sold by him, as administrator, to a man of the name of M’Sherry. The facts appear to be, that at the sale of his intestate’s estate, the plaintiff sold the horse for seventy dollars on the usual term of note and security : the purchaser, without complying, took off the horse without the plaintiff’s knowledge; he pursued M’Sherry, and took from him anote on one Eccles, who was then, and for a year afterwards, solvent: the note was for more than the price of the horse, and the plaintiff paid M’Sherry the difference.

From this statement, it is apparent that the note of Eccles would not be regarded as the assets of the estate ; it was received in satisfaction, it is true, of the price of the horse, but the receipt of it was the act of the administrator outside of his duty as such. If loss has ensued, it must fall on him. For he, and not his intestate’s estate, must be regarded as the owner of Eccles’ note. It was his duty, as administrator, to see that the terms of the sale were complied with, by note and security being given for the property, or to resell it. If he chose to take anything else in satisfaction of the purchase, he made it his own, and became answerable to the estate — if the parties in interest elected so to consider it, and so to deal with him. But the fact that he paid more for the note than the price at which the horse was sold, shows that the acquisition of the note was his own speculation. We concur, therefore, with the Chancellor, in sustaining the exception to the Commissioner’s report in this respect.

The second part of the case relates to Hoyt’s execution. It appears that in the time of M’Creary it had been levied by Mr. Sheriff ^Kennedy of Chester, on a slave, who, if he had been sold, would L 99 have sold for a sum greater than that due on the execution ; but he was left by the sheriff with M’Creary, on his giving bond to Mr. Kennedy, as an individual, to deliver the said slave for sale. The slave was carried out of the State by M’Creary, or by his consent. Six years after the levy lie was brought back and delivered to Mr. Kennedy, who entered a receipt "upon the bond for him as delivered by the security : he was not sold, but permitted by Mr.-Kennedy, who had been out of office for some time, to return to his owner out of the State. At the time of the levy, and for several years after, and indeed until paid in this case, there were executions against M’Creary, in the sheriff’s office of Chester District, senior to that of Hoyt’s, to an amount much beyond the value of the slave,

A levy is, in legal contemplation, satisfaction of a fi. fa., that is, it is presumptive evidence that satisfaction may result or has resulted from it. But as soon as it is shown how the levy has been disposed of, and that satisfaction has not and could not have resulted from the levy, the legal presumption is rebutted, and the execution may be again levied, if it has not lost its active energy : and if it has, the judgment may be revived by sci. fa., or sued upon in debt.

In this case, the plaintiff in execution, Hoyt, never could have obtained satisfaction from the levy ; for, if the slave had been sold, the elder executions must have been first satisfied before he could have received anything. They would have taken up a larger sum than the value of the slave. If he had sued the sheriff for not selling the negro, he would have been answered as the Court answered the plaintiff in the case of Gaines v. Downs, State Rep. 12, that “he (the sheriff) was only liable to them who were injured by his neglect.” The senior execution creditors were the persons in this case, as in that, who had the right to complain. We are therefore satisfied with the Chancellor’s decree in this respect.

It is ordered and decreed, that the Chancellor’s decrees, upon these two parts of the same case, be affirmed.

Harper and Johnson, Js., concurred.  