M'Intosh v. Chew

1 Blackf. 289, 1823 Ind. LEXIS 30

Opinion

Scott, J.

Chew and Beattie, the defendants in error in this case, obtained ¿judgment in the General Court of the Indiana territory against McIntosh, one of the present plaintiffs. M'lntosh had the judgment enjoined, and gave an injunction bond, with M’-> Call, the other plaintiff, as his surety. The inj unction was after-wards dissolved by a decree of this Court. Execution was then taken on the judgment, and Was returned, levied on the real estate of MTntosh, and the property not sold for want of bidders. The plaintiffs below, without any further proceedings being had on the judgment and execution, brought suit on the injunction bond. An agreed case was made by the parties, containing the foregoing facts, and submitting to the consideration of the Court, whether, under these circumstances, the levying of the execution on the property of one of the defendants, and that property remaining unsold, was, or was not, a bar to the action on the injunction bond. — The judgment was for the plaintiffs below.

We think the Circuit Court has mistaken the law in this case. We take the law to be, that the plaintiffs, by levying their execution on the lands of the defendant, have elected to take that specific property as a pledge for the satisfaction of their whole debt; and, while it is held by them for that purpose, it is, for the time, presumed to be a satisfaction. The plaintiffs, then, having elected that remedy, are barred from taking any other ¿gainst the same defendant, until that which they have chosen is clearly and legally shown to be insufficient 1 Salk. 322.— 2 Ld. Raym. 1072. — 4 Mass. 403. — 1 Johns. R. 290.--7 ib. 428. —12 ib. 207__6 Mod. 297, 300. — 2 Tidd, 937 — 2 Bac. 720. These authorities all go to show, that where the goods of a defendant have been taken in execution, whether they are sold or not, the seizure is a bar to any other execution against him for the same debt

Footnotes

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(1). The reason is equally strong, and the law equally clear, that it is a bar to any other suit brought 'against the same person for the same demand. Viewing the' subject, then, on the principles of strict law, or of a liberal construction, or on considerations ofnatural reason and convenience, we are of opinion that goods or lands taken in execution, must be considered as a satisfaction of the judgment debt, and may be pleaded in bar of any other action against the same defendant for the same demand, until their insufficiency is made maní lest by a sale and return, showing the amount made of the property so levied; and then they are an absolute satisfaction pro tanto, and the plaintiff may proceed for what remains (2).

Judah, for the plaintiffs. Dewey, for the defendants.

Per Curiam.

The judgment is reversed, with costs.,

Vide Lasselle v. Moore, ante, p. 226.

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For the residue — part only having been levied — the plaintiff may sue out another fi. fa., or a ca. sa.; or ho may bring an action on the judgment. Bingh. on Ex. 260. Vide Steele v. Murray, ante, p. 179, and note.