
    Jonathan Davis v. Hugh Barkley.
    The plaintiff, having distinct judgments against two defendants for the. same debt, levied his execution on the goods of one of them, but directed the proceeds of the levy to be applied to the satisfaction of a junior judgment against the same defendant. Meld, that the levy was a satisfaction of the senior judgment, and that the judgment against the other defendant was also thereby extinguished, although funds had been placed in his hands for the payment of the debt by the party ultimately liable, and had not been paid overby him to the plaintiff'.
    A levy will be regarded as satisfaction, unless if be shewn, either that it was insufficient, or that the proceeds had been applied to the satisfaction of a prior lien, or that it was otherwise rendered unproductive, without fault on the part of the plaintiff, or the sheriff.
    Distinct judgments against different defendants for the same debt are all extinguished by the satisfaction of any one of them, without regard to the ultimate liabilities of the defendants to each other.
    Tried before Mr. Justice Gantt, at Fairfield, Spring Term, 1832.
    This was an action on -the case against the defendant as sheriff of Fairfield District for a false return under the following circumstances. The executors of Aaron Cates recovered judgments in separate actions against William F. Pearson and Washington Lyles, as sureties of John Boyd, for the same debt, and assigned both judgments to the present plaintiff, who lodged ex-editions thereon in the offices of the sheriffs of Fairfield and Richland Districts respectively. The sheriff of Richland made a levy under the execution against Lyles; but by the direction .of the plaintiff applied the proceeds in satisfaction of a judgment against Lyles in favour of Andrew Wallace, which was junior to the plaintiff’s, but for the payment of which the plaintiff was said to be liable as the surety of Lyles. The present plaintiff had also recovered a judgment against William F. Pearson and Henson Barker, and had received from Pearson several sums of money on account of this judgment, and of that in favour of the executors of Cates, which, added to the pro ceeds of the levy made by the sheriff of Richland, amounted to a sum more than sufficient to discharge both of the judgments against Pearson. The defendant, as sheriff of Fairfield, subsequently levied the plaintiff’s executions on two slaves said to be the property of William F. Pearson ; but being informed that they were in fact the property of Philip Pearson, sen. he sold them under executions against the latter, and returned the plaintiff’s executions nulla bona. And for this return the present action was brought.
    At the trial much evidence was introduced on both sides in reference to the question, whether the slaves levied on were the property of Philip Pearson, sen. or of William F. Pearson; and many objections were made as to admissibility and'effect of this evidence. It was also contended for the defendant, that the previous levy upon the property of Lyles had satisfied the plaintiff’s judgment against him, and extinguished that against Pearson for the same debt pro tanto; and that the money paid by Pearson to the plaintiff being sufficient to satisfy the residue of both his executions, there was in fact nothing due upon either of them ; and the plaintiff had therefore sustained no injury by the return. To meet this defence the plaintiff offered to prove that Boyd, the real debtor, who had left the State, had previously deposited in the hands of William F. Pearson, the whole amount of the debt due to the executors of Cates, for which judgments had been obtained against Pearson and Lyles as sureties; which money Pearson had not paid over to the plaintiff, but had applied to his own use. This evidence was objected to as irrelevant, and the objection was sustained by the Court.
    
      The jury found for the defendant, and the plaintiff now 0 J moved to set aside their verdict, and for a new trial, on a variety °f grounds, which, from the view taken of the case by the Court of Appeals, it is unnecessary to specify.
    Gregg and Clarke tor the motion.
    Desacssure and Johnston, contra.
    
   Johnson, J.

delivered the opinion of the Court.

This case has been very much amplified in the brief presented by counsel, and the report of the presiding Judge; but the leading facts, and the law applicable to them, appear to me to lie in a very narrow compass.

That the plaintiff was intitled to but one satisfaction of the several judgments against Lyles and Pearson is very clear, for they were both rendered for one and the same debt: And that the money made bji the sale of Lyles’ property was a satisfaction of both pro tanto, is, I think, demonstrable from a variety of considerations. It is a received rule, that a levy is-satisfaction, at least so far as to throw on the plaintiff the burthen of shewing, either lliat it was insufficient, or that the proceeds were applied to the satisfaction of some prior lien, or that it was otherwise rendered unproductive without his fault, or the fault of the officer. Now, as this case is understood, the levy was not only made, hut the property sold, and the amount- received by the sheriff: And if this were a proceeding against Lyles to revive that judgment, he might well answer that it had been satisfied. The plaintiff would not be permitted to reply, that he, of his own mere motion, had made a different disposition of the fund: the law had already appropriated it, and the plaintiff could not, without the consent of Lyles, give it a different direction.

This would be the effect as between the parties themselves; but the objection becomes much stronger when we come to consider the operation of the rule coutcuded for upon the rights of third persons. Let us suppose that there were intervening executions against Lyles, and that lie was so far insolvent, that if the executions against him were paid off in the order of their dates, tiie elder and the intervening executions would have exhausted his property; could the plaintiff, by a transfer of the money made under his senior execution to the junior, give the latter a preference to the intervening executions I Certainly not. Now the case supposed is very similar to the present. Pearson and Lyles were the joint sureties of Boyd; and both the judgments were for the proper debt of Boyd : Lyles had therefore a right of action against Pearson for contribution,- to the extent of the excess of the sum made by the levy of his properly over his proportion of the debt; and yet it is contended, that the plaintiff might at his option defeat that right. Again, Pearson might have had rights to be protected. In the event of his having the whole debt to pay, he would be intitled to an action against Lyles for contribution ; but Lyles is insolvent, and the effect of the transfer made by the plaintiff, is to cancel the payment by Lyles, and to turn Pearson over to a barren law-suit. I am therefore of opinion, that the judgments against Pearson must be regarded as satisfied, and that substantial justice has therefore been effected by the verdict.

In this general view I have overlooked the multifarious incidental circumstances detailed in the report and the brief, as well as the great variety of grounds which have been set down in support of the motion. I might not perhaps be disposed to concur with the presiding Judge upon all these grounds; but I can discover no error in matters affecting the decision of the case, in the view which I have ’taken of it. The evidence offered by the plaintiff to prove that Boyd had deposited with Pearson a sum sufficient to pay the whole of the debt to the executors of Cates, would seem, at first view, to give a degree of plausibility to the plaintiff’s case; but a very slight examination will show that this evidence was properly rejected. The deposit with Pearson imposed no new liability on him to the executors of Cates, or to. the plaintiff’ who represented them; for he was already liable for the whole debt. It intitled Lyles indeed to call upon him for a reimbursement of the entire sum which had been made by the levy on his property : but the plaintiff, who had received the benefit of that levy, could not certainly be intitled to be twice paid, because Pearson was liable over to Lyles. The payment of Wallace’s execution, for which the plaintiff is stated to have been liable as surety, may have given him a right of action against Lyles ; but this could not invest him with Lyles’ right of action against Pearson for a distinct matter, and still less could it have the effect of reviving his own judgment against Pearson. The fact offered to be proved was therefore wholly irrelevant, and the evidence of it inadmissible. Motion refused.  