
    [Pittsburg,
    October 1, 1824.]
    HUNT and another against BREADING.
    IN ERROR.
    A judgment creditor, who has taken in execution the goods of his debtor, cannot afterwards discharge them from the execution, and continue his judgment in force as to the land of the debtor.
    Where, therefore, a judgment creditor who had taken his debtor’s goods in execution to the value of the debt, and permitted them to remain in his possession, as appeared by the sheriff’s return, agreed to set aside his levy, and, in considera, tion of being' paid the amount of his judgment, to assign it to a subsequent judgment creditor, who, at the same time received from the debtor, in payment of his own debt, the goods which had been levied on in satisfaction of the judgment assigned to him, it was held, that the first judgment was satisfied, and that the assignee of that judgment was not entitled tó be paid out of the money arising from the sale of the debtor’s lands, in preference to an intermediate judgment creditor.
    On a writ of error to the Court of Common Pleas of Fayette county, it appeared that this was an amicable action, in case, entered by the parties, to try their respective rights to a sum of money in court, arising from the sale of the real estate of George Caruthers. The plaintiffs in error were plaintiffs below. A case was stated for the opinion of the court, to be considered as a special verdict, either party having the right to sue out a writ of error. In substance it was as follows:
    
      Henry Dales, on the 15th of July, 1817, obtained a judgment in the Court of Common Pleas of Fayette county, against George. Caruthers, for ten dollars and thirty-one and a quarter cents; upon which a writ of fi. fa. issued, and the separate real estate of George Caruthers, situate in Fayette county, was taken in execution, and condemned, and afterwards sold by the sheriff, under a writ of venditioni exponas, to James E. Breading, the defendant in this action, for eight hundred and twenty-five dollars. D. B. Bayless, and Joseph Thornton on the 25th of February, 1S20, obtained a judgment in the said court against Cephas Gregg, and George Caruthers, surviving partners of Jesse Pennell, deceased;, for five hundred and fifty-nine dollars' and eighty-seven cents; upon which a writ of fi. fa. issued, returnable to December term, 1820 This writ was delivered to the sheriff, who, by virtue thereof, levied on one hundred boxes of'window glass, and twenty boxes of hollow ware, the joint property of the defendants in the execution, which were left in the possession of the defendants by the consent of the plaintiffs; and this fact was returned by the sheriff with the writ. On the 22d day of December, 1820, an agreement was made between the plaintiffs in this action, D. B. Bay-less, one of the plaintiffs in the second judgment before-mentioned, and Cephas Gregg, one of the defendants in that judgment, without the knowlédge or consent of George Caruthers, the other defendant, their partnership having been previously dissolved, by which it was stipulated, that the- levy aforesaid on the window glass and hollow ware should be set aside, and liie property levied upon returned to the defendant, C. Gregg, which was done accordingly; that the judgment of D. B. Bayless and Joseph Thornton, aforesaid, should be assigned to the plaintiffs in this action, they agreeing to pay the same, all which was done accordingly; and that the plaintiffs in this action should take and have the window glass and hollow ware, levied on as aforesaid, in part payment of a debt which was owing to them at that time by Gregg and Caru-thers, surviving partners of J. Fennel, and they were accordingly delivered to and received by them. At this time, Gregg was the active partner in settling the accounts and business generally of the late firm of Gregg, Pennell, and Caruthers; Pennell being dead, and Caruthers removed to Wheeling in Virginia. George Ca-ruthers was then considered insolvent, and the window glass and hollow ware were sufficient to satisfy the amount of the judgment in favour of Bay less and Thornton. George Caruthers, Cephas Gregg, and the estate of J. Pennell, were admitted to be insolvent, both as partners and in their separate characters. The plain - tiffs in this action had two judgments for their debt, against the said Gregg and Caruthers, surviving partners of Pennell; one entered on the 11th of March, 1820, the other entered on the Sth of December, 1820, in the court aforesaid, amounting to five thousand, two hundred and fifty-two dollars. On the 8th of March, 1820, James E. Breading, the defendant in this action, obtained a judgment in the court aforesaid against George Caruthers, for for one thousand seven hundred dollars, upon condition that if the said George should pay to the Monongahela bank of Brownsville, two notes amounting to one thousand six hundred dollars, besides interest due thereon, which the said James, as endorser for the said George, was liable to pay, then the obligation on which the judgment was entered, by virtue of a warrant of attorney to be void, otherwise to. remain in full force, &c. These notes remained under protest from the 23d day of March, 1819, until the 30th day of July, 182.2, when they were paid by James E. Breading to the said bank. On the 9th of March, 1S20, Nathaniel Breading and William Ewing, obtained a judgment in the court aforesaid against George Caruthers for three thousand dollars, conditioned for the payment of what might be found due on settlement. George Ca~ ruthers was indebted to the firm of Pennell, Gregg, and Caru-thers, at the time of the dissolution of that firm.
    Tí v%h.L' ¡ig'.ví-.t that the subjoined advertisement, should be considered as pr.it of the case.
    
      “ Notice is hereby given, that the partnership of Pennell, Gregg, and Caruthers is this day dissolved, by mutual consent. All persons having any claims against the firm, will call on Cephas Gregg, who is authorized 1o settle the accounts; and persons who stand indebted by either bond, note, or book account, will please call and settle before the first of October next, otherwise they may expect to find their accounts placed in the hands of proper officers for collection. Cephas Gregg.
    
    
      “ Brideport, Sept. 11th, 1820.” George Caruthers.
    
    The opinion of the Court of Common Pleas being in favour of the defendant, the cause was removed, by writ of error, to this court, where it was argued by Lyon, for the plaintiffs in error,
    who cited 2 Lord Ruy. 1072. Cro. Eliz. 209, 238, 391. Saville, 320, 322. 8 Johns. 339. 4 Mass. B. 402,403. 3 2 Johns. 406. 5 Co. 86. 1 Wash. B. 92, 96. 2 Ball. 263. 2 Johns. Ch. B. 418, 421. 12 Blass. 52. 5 Serg. & Buwle, 15, 16. 3 Jltle. 192, 357. 3 Johns. Ch. B. 17, 446.
    
      Kennedy and Ewing, who were counsel for the defendant in error,
    were stopped by the court, whose opinion was delivered by
   Gibson, J.

When the agreement which gives rise to this controversy, was entered into, the interests of all parties who had liens, stood thus: Dales had obtained a judgment against Caruthers on the 17th of July, 1817. Bay less, and Thornton had obtained a judgment against Gregg and Caruthers on the 25th of February, 1820. Breading, the present defendant, had obtained a judgment against Caruthers, on the 8th of March, 1820: and E. and C. Hunt, the present plaintiffs, *had obtained two judgments against Gregg and Caruthers; the one on the 11th of Biarch, and the other on the 8th of Becember, 1820. ' These judgments were liens on the land of Caruthers, in the order of priority in which I have mentioned them. Bay less and Thornton had issued a fieri facias on their judgment, and had seized the partnership effects of Gregg and Caruthers in execution, but at the same time permitted those effects to remain in the custody of the latter; as appears by the sheriff’s return. While matters are in this state, an agreement is entered into between the Messrs. Hunts, Bay-less, the partner of Thornton, and Gregg, the partner of Caru-thers, by which it is stipulated, that the levy under the execution of Bayless and Thornton shall be set aside; that their judgment shall be assigned to the Messrs. Hunts, who engage to pay them their debt; and that the goods of Gregg and Caruthers, which were thus to be released from execution, shall be delivered to the Messrs. Hunts, in payment of the demand which they had in their own right. This agreement is afterwards carried into execution; and the land of Caruthers being subsequently sold on the judgment of Dales, it is contended, that the judgment of Bayless and Thornton in the hands of the Messrs. Hunts, ought to be treated as still outstanding, and as a lien entitled to a priority over the judgment of Breading.

It is unnecessary to consider the effect of the rule in equity, which compels a creditor who has a security on two funds, to take his satisfaction out of a particular one of them, in favour of a creditor who has a security exclusively on the other, as I am satisfied, on principles of law, that a judgment creditor who has seized the goods of his debtor in execution, cannot discharge them, and leave his judgment in force as to the land. But there are particular circumstances in the case stated which render it a peculiar one, and which it is worth while to consider. A judgment creditor, who has seized the goods of his debtor, agrees, to set aside his levy and assign his judgment to subsequent judgment creditors, on receiving the amount of his debt from them; while they, on the other hand, receive freta the debtor in payment, as it is said, of the debts originally due them, the very goods which had been levied in satisfaction of the judgment which is assigned to them: and all this circuity of, what is in effect, payment of that judgment, to elude an intermediate judgment which is a lien on the land. To their own rights the plaintiffs unite in their own persons, the rights of Bay less and Thornton; and it is immaterial to the argument, whether all those rights are united to the persons of the plaintiffs, or in the persons of Bay less and Thornton: the clients of ownership, as to this particular judgment, would be exactly the same. If, then, Bayless and Thornton had become assignees of the two judgments of the plaintiffs, could they have released the goods of Gregg and Caruthers, which had been seized in execution on their prior judgment, and at the same instant have received those goods directly in payment of tiieir subsequent judgments, so as to reserve the first as a lien on the land ? No one will pretend it. That would put it in their power to lock up the goods of the debtor, under an execution on their prior judgment, till matters should be in train to seize the same goods in execution for another debt, and thus, by changing the application of their levy, enable them to obtain a preference as regards both the real and the personal estate. But it is said, that consequence could not have been produced in this instance, because the goods were left in possession of the debtor, and there was no obstruction to a levy by subsequent execution creditors. I admit it. But it is impossible not to see, that the whole ai’rangement was intended to produce payment in effect of the judgment of Bayless and Thornton, and at the same time to give the judgments of the Messrs. Hunts a priority over the judgment of Breading, at least to the value of the goods; and that such an arrangement would be fraudulent in the contemplation of law, I am very much inclined to believe. But the cause is clearly with the defendant on another ground. Seizing goods in execution to the value of the debt, is a discharge of all responsibility on the part of the debtor, and consequently, a discharge of the judgment; and this whether the goods be sold or not; all further remedy being against the sheriff, who becomes exclusively liable by the seizure. Clerk v. Withers, 1 Salk. 323. Mountney v. Andrews, Cro. Eliz. 235. She v. Finch, 2 Roll. Rep. 57. Cockrant v. Welhy, 2 Show. 79. pl. 63. Speake v. Richards, Hob. 206. 4 Mod. 404. Where, indeed, the sheriff has seized pn a fi. fa., but returns nulla bona, and there is a recovery against him by the judgment creditor for a false return, the fact of actual seizure will not discharge the judgment, but the property in the goods will remain in the debtor, subject to any other execution. Underwood v. Mordaunt, 2 Vern. 238. But this consequence, I apprehend, is produced by the conclusiveness of the return, which is of such high regard, that generally no averment is to be received against "it; and it cannot therefore be shown, that the goods were actually seized. (Com. Dig. Return G.) In Ward v. Hauchett, 1 Keble, 551, it was determined, that where the sheriff takes a bond for the money, it is payment of the debt as to the judgment creditor; and, further, that if he seizes the goods and leaves them in the possession of the debtor, by the direction of the judgment creditor, and under an agreement with the creditor, it is in strictness, satisfaction of the judgment: and although the court would not, in that case, compel the sheriff to return the execution, to enable the party to have an audita querela, yet it was, said, that if he had suffered damage on account of the writ not having been returned, he might maintain an action for it. The sum of the matter, therefore, appears to be this: Where the goods are actually seized, the property vests in the sheriff, and the debt becomes satisfied, as to the judgment creditor, who can look only to the sheriff, unless where the latter chooses to return nulla bona, and there he becomes answerable to the judgment creditor for his false return, who may also levy the same goods on another execution. Here the sheriff returned, that he had levied and left the goods in the possession of the debtor, and the judgment must therefore be treated, as having been at one time actually satisfied. Whether it might not be restored to its former incidents, by the agreement of the parties, as between themselves, is not the question; assuredly it could not be restored so as to deprive third persons of an advantage which they had gained, by its having at any period been discharged; consequently, its lien on this land is gone.

Judgment affirmed.  