COLLIER, C. J
— It is insisted for the defendants, that if the Circuit Court erred in the admission of evidence, or in the refusal to charge the jury, the plaintiffs were not prejudiced, and cannot complain; because the proceedings upon the claim of property interposed by Dawson and S. Friou, amount to an election to pursue that remedy, and bars the motion against the sheriff for a failure to perform his duty. There is nothing in the record from which it can be inferred, that the plaintiffs were willing to proceed to the trial of the right of property, or had elected that case as a mode of making their judgment available. That was a procedure originated by the claimants under the authority of a statute, in order to prevent the sale of goods levied on, unless the right asserted by them, should be adjudged invalid. The plaintiffs could not control the interposition of such a claim, and if regularly made the sheriff was bound to allow it. The case then is commenced and placed upon the trial docket, without the agency of the plaintiffs, and under circumstances that show that they were entirely passive.
This being the condition of the claim of property, the plaintiffs moved the Court as soon as it was docketed, to dismiss it: this motion being overruled, they declined proceeding to trial, and a judgment of nonsuit with costs, was rendered against them. To reverse this judgment; they prosecuted a writ of error to this Court; and upon the cause being remanded they again moved for a dismissal for the defectiveness of the claimants bond: this motion was granted upon the refusal of the latter to perfect their bond. So far from all this showing an election to proceed to try the right of property, it rather indicates the reverse; else why ask the Court, whenever an opportunity presented itself, to repudiate that case? No adverse inference can be drawn from the prosecution of the writ of error by the plaintiffs. The reversal of the judgment of nonsuit could only have been sought for the purpose of relieving the plaintiffs from the payment of costs, and having the case so disposed of, as not to prejudice their rights.
[182]*182But suppose the plaintiffs had voluntarily submitted to a trial of the right of property, and been unsuccessful, would this have availed the defendants as a bar to a remedy against him for neglect. In Baylis v. Usher 4 Moore & P. Rep. 791-2, Bosanquest, Justice, said, “ a right of action once vested can only be destroyed by a release under seal, or by the receipt of something in satisfaction of the wrong done; and therefore the tenant does not waive his right of action for an excessive distress, though he enter into a written agreement with his landlord, respecting the sale of the effects seized.” And in Willoughby v. Bockhouse, 4 Dowl. & R. Rep. 539, Bayley, Justice, said, there was no such thing as a man’s waiving his right of action, when once a wrong had been committed. Mr. Justice Co wen, succeeds a quotation of this remark with the emphatic inquiry, “And indeed it may be asked, who ever heard of such a thing being held?” He also said, “Nothing is better settled than that, after an injury has beeen committed, the cause of action cannot be discharged by any act of the plaintiff short of a release, or acceptance of something in satisfaction.” And this principle he enforces by the familiar case of the delivery to, and acceptance of goods by the plaintiff after the conversion or tort has been committed; in which it is held, that trover or trespass is not thereby bared. [Bowman v. Teall, 23 Wend. Rep. 309.]
In Ravenscroft v. Eyles, 2 Wils. Rep. 294, it was decided that an action upon the case, for an escape upon mesne process, was maintainable against the Warden of the Fleet, although the prisoner returned and submitted himself to custody on the same day, and the plaintiff proceeded to final judgment againt him, with a full knowledge of his escape.
It has been held, that where the plaintiff without a knowledge of the prisoner’s previous escape, opposed his discharge under the act for the relief of insolvent debtors, he might, notwithstanding, maintain an action against the sheriff for the escape. [Dash v. Van Kleeck, 7 Johns. Rep. 477.] But where a plaintiff brings an action against the sheriff for an es cape, he has elected to consider the prisoner as out of custody, and cannot oppose his discharge under the insolvent act. [McElroy v. Mancius, 13 Johns. Rep. 121.] So where a new sheriff receives a prisoner from his predecessor, who had pre[183]*183viously made a voluntary escape, he is bound to keep him securely, and the plaintiff has his election to consider the prisoner in execution, and charge the new sheriff for an escape from him, or as out of custody, and charge his predecessor. If he has made his election, and prosecuted a suit to judgment against the latter, this is a bar to an action against the former. [Rawson v. Turner, 4 Johns. Rep. 469.]
The cases in which the election of a remedy against one person, will bar an action against another, are those in which the actions are inconsistent with each other, and the one last brought requires the proof of facts incompatible with the first -7 and which the latter impliedly affirms does not exist, or if they do exist, it waives the benefit of them. There is no incongruity in charging the sheriff with neglect of duty in not making the money on execution, after having moved the dismissal of a claim to property, on which the execution was levied. Such a motion, even if it recognized the case, and manifested a willingness to try it, or if there had been a trial in fact, would not waive the summary remedy for neglect, or affirm that neglect was not incompatible. How can the want of official diligence be expurgated by attempting to subject to the satisfaction of an execution, property on which the officer had levied. Such a proceeding merely affirms the liability of the property, but neither denies or excuses the neglect. The remedy then,, against the sheriff is concurrent or at most cumulative, and remains unimpaired by the claim of property, whether tried or not.
A sheriff or other officer, who has begun to do execution may be compelled to proceed therein, and having levied it, it was his duty at common law to sell the goods seized, even after the return day; and this although he had been superseded (in the meantime) by a successor duly qualified. The law in this respect remains unchanged, unless it be to require a ven-ditioni exponas to warrant the sale after the fieri facias has lost its energy. [Bondurant, et al. v. Buford, 1 Ala. Rep. 359.] The delivery of the goods, together with the execution to the defendant’s successor, did not absolve the defendants from the obligation to sell or otherwise legally dispose of them. Having levied thefi.fa. it was his duty to provide for the safe-keeping: of the goods, as they were not replevied, and if to authorize a [184]*184sale a venditioni exponas was necessary, (upon which we express no opinion) he should at least have accepted it when offered. If they had been replevied upon good security, or the claim of property had been regularly interposed upon affidavit and bond, then the defendant Smith, might have delivered the goods to the defendant in execution in the one case, and the claimants in the other: and such a disposition would have relieved him from the imputation of the want of due diligence in selling them.
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COLLIER, C. J
— It is insisted for the defendants, that if the Circuit Court erred in the admission of evidence, or in the refusal to charge the jury, the plaintiffs were not prejudiced, and cannot complain; because the proceedings upon the claim of property interposed by Dawson and S. Friou, amount to an election to pursue that remedy, and bars the motion against the sheriff for a failure to perform his duty. There is nothing in the record from which it can be inferred, that the plaintiffs were willing to proceed to the trial of the right of property, or had elected that case as a mode of making their judgment available. That was a procedure originated by the claimants under the authority of a statute, in order to prevent the sale of goods levied on, unless the right asserted by them, should be adjudged invalid. The plaintiffs could not control the interposition of such a claim, and if regularly made the sheriff was bound to allow it. The case then is commenced and placed upon the trial docket, without the agency of the plaintiffs, and under circumstances that show that they were entirely passive.
This being the condition of the claim of property, the plaintiffs moved the Court as soon as it was docketed, to dismiss it: this motion being overruled, they declined proceeding to trial, and a judgment of nonsuit with costs, was rendered against them. To reverse this judgment; they prosecuted a writ of error to this Court; and upon the cause being remanded they again moved for a dismissal for the defectiveness of the claimants bond: this motion was granted upon the refusal of the latter to perfect their bond. So far from all this showing an election to proceed to try the right of property, it rather indicates the reverse; else why ask the Court, whenever an opportunity presented itself, to repudiate that case? No adverse inference can be drawn from the prosecution of the writ of error by the plaintiffs. The reversal of the judgment of nonsuit could only have been sought for the purpose of relieving the plaintiffs from the payment of costs, and having the case so disposed of, as not to prejudice their rights.
[182]*182But suppose the plaintiffs had voluntarily submitted to a trial of the right of property, and been unsuccessful, would this have availed the defendants as a bar to a remedy against him for neglect. In Baylis v. Usher 4 Moore & P. Rep. 791-2, Bosanquest, Justice, said, “ a right of action once vested can only be destroyed by a release under seal, or by the receipt of something in satisfaction of the wrong done; and therefore the tenant does not waive his right of action for an excessive distress, though he enter into a written agreement with his landlord, respecting the sale of the effects seized.” And in Willoughby v. Bockhouse, 4 Dowl. & R. Rep. 539, Bayley, Justice, said, there was no such thing as a man’s waiving his right of action, when once a wrong had been committed. Mr. Justice Co wen, succeeds a quotation of this remark with the emphatic inquiry, “And indeed it may be asked, who ever heard of such a thing being held?” He also said, “Nothing is better settled than that, after an injury has beeen committed, the cause of action cannot be discharged by any act of the plaintiff short of a release, or acceptance of something in satisfaction.” And this principle he enforces by the familiar case of the delivery to, and acceptance of goods by the plaintiff after the conversion or tort has been committed; in which it is held, that trover or trespass is not thereby bared. [Bowman v. Teall, 23 Wend. Rep. 309.]
In Ravenscroft v. Eyles, 2 Wils. Rep. 294, it was decided that an action upon the case, for an escape upon mesne process, was maintainable against the Warden of the Fleet, although the prisoner returned and submitted himself to custody on the same day, and the plaintiff proceeded to final judgment againt him, with a full knowledge of his escape.
It has been held, that where the plaintiff without a knowledge of the prisoner’s previous escape, opposed his discharge under the act for the relief of insolvent debtors, he might, notwithstanding, maintain an action against the sheriff for the escape. [Dash v. Van Kleeck, 7 Johns. Rep. 477.] But where a plaintiff brings an action against the sheriff for an es cape, he has elected to consider the prisoner as out of custody, and cannot oppose his discharge under the insolvent act. [McElroy v. Mancius, 13 Johns. Rep. 121.] So where a new sheriff receives a prisoner from his predecessor, who had pre[183]*183viously made a voluntary escape, he is bound to keep him securely, and the plaintiff has his election to consider the prisoner in execution, and charge the new sheriff for an escape from him, or as out of custody, and charge his predecessor. If he has made his election, and prosecuted a suit to judgment against the latter, this is a bar to an action against the former. [Rawson v. Turner, 4 Johns. Rep. 469.]
The cases in which the election of a remedy against one person, will bar an action against another, are those in which the actions are inconsistent with each other, and the one last brought requires the proof of facts incompatible with the first -7 and which the latter impliedly affirms does not exist, or if they do exist, it waives the benefit of them. There is no incongruity in charging the sheriff with neglect of duty in not making the money on execution, after having moved the dismissal of a claim to property, on which the execution was levied. Such a motion, even if it recognized the case, and manifested a willingness to try it, or if there had been a trial in fact, would not waive the summary remedy for neglect, or affirm that neglect was not incompatible. How can the want of official diligence be expurgated by attempting to subject to the satisfaction of an execution, property on which the officer had levied. Such a proceeding merely affirms the liability of the property, but neither denies or excuses the neglect. The remedy then,, against the sheriff is concurrent or at most cumulative, and remains unimpaired by the claim of property, whether tried or not.
A sheriff or other officer, who has begun to do execution may be compelled to proceed therein, and having levied it, it was his duty at common law to sell the goods seized, even after the return day; and this although he had been superseded (in the meantime) by a successor duly qualified. The law in this respect remains unchanged, unless it be to require a ven-ditioni exponas to warrant the sale after the fieri facias has lost its energy. [Bondurant, et al. v. Buford, 1 Ala. Rep. 359.] The delivery of the goods, together with the execution to the defendant’s successor, did not absolve the defendants from the obligation to sell or otherwise legally dispose of them. Having levied thefi.fa. it was his duty to provide for the safe-keeping: of the goods, as they were not replevied, and if to authorize a [184]*184sale a venditioni exponas was necessary, (upon which we express no opinion) he should at least have accepted it when offered. If they had been replevied upon good security, or the claim of property had been regularly interposed upon affidavit and bond, then the defendant Smith, might have delivered the goods to the defendant in execution in the one case, and the claimants in the other: and such a disposition would have relieved him from the imputation of the want of due diligence in selling them.
Whether the claim made while the execution was in the hands of the defendant Smith’s successor, was so interposed as to prevent the claimants from objecting to its.irregularity, we need not inquire. We have already said that the goods were properly in his hands by the levy, and that he did not legally dispose of them. The evidence adduced by the defendant does not furnish an answer to the suggestion, 'or in any manner repel the presumption of neglect, which is inferable from the fact that the defendant in execution was in possession of property, a part of which had been levied on. In Minter v. Bigelow & Co. 9 Porter’s Rep. 481, it was determined, that it would be presumed that a defendant in execution was the owner of property of which he was in possession; and that it devolved upon a sheriff, against whom a motion was made for failing to make the money on a Ji. fa. upon a suggestion of a want of due diligence, to show that the property was not liable to its satisfaction. See also Robertson v. Beavers, 3 Porter’s Rep. 385. No proof tending to such a conclusion was offered, and the inference as well upon the reason of the thing, as upon the authority cited was, that not only the goods, but the other property of which the defendant in execution was ostensibly possessed, were subject to seizure and sale.
The statute under which the present case was instituted enacts, that upon the failure of any sheriff or coroner to make the money on an execution, the plaintiff may suggest to the Court, that the money could have been made with due diligence; thereupon it shall be the duty of the Court forthwith to cause an issue to be made up to try the fact; and if it shall be found by the jury, that the money could have been made with due diligence, judgment shall be rendered against the sheriff or coroner, or his sureties, or any or either of them, for the sum of [185]*185money specified in the execution, with ten per centum, &c. as damages. [Clay’s Dig. 218, § 85.] In Hallett v. Lee & others, 3 Ala. Rep. 28, it was held, that the defendants to the motion, might plead to the suggestion any matter in excuse or avoidance, which would negative its truth. And we apprehend it would be entirely competent for the sheriff to show as well before as after levy that the money could not be made. The levy will not estop him from denying that the property seized was the defendants. In. taking it, he merely affirms that he believes it is subject to the execution, and when charged with the want of diligence, it is incumbent on him to show that he was mistaken.
The facts proved by the defendants we have seen, were in themselves immaterial and made out no defence ; they should consequently have been excluded. But being admitted, when' taken in connection-with the evidence offered by the plaintiffs, a sufficient foundation was. laid for the instructions asked; and .they should have been given to the jury. The consequence is, that the Circuit Court erred; its judgment is therefore reversed and the cause remanded.