Tarkinton v. . Guyther

35 N.C. 100

• Court: Supreme Court of North Carolina
• Decided: December 5, 1851
• Status: Published

Opinion

Ruffin, C. J.

The judgment must be affirmed. It is admitted, that directions, at the time of payment, to apply it in satisfaction of a particular execution, would, while things remained in that state, be, pri??za facie, a discharge of the execution, and make it wrongful in the Sheriff to proceed further on it. -And it need not be denied, that, if an execution be against two, and one of them pay money on it, he and the Sheriff cannot afterwards, though before the return, change the application, to the prejudice of the other defendant. For, however that may be, it cannot affect this controversy, because both of the debtors — the present defendant and Fagan — gavo directions to the Sheriff to apply the money to an execution against this defendant alone, and, consequently, not to return the plaintiff’s execution, satisfied. It is the same, then, as if the execuiion liad been against a single person, who, after paying the Sheriff a sum of money, with an intention to discharge it, received the same back, or had it applied to another demand against him in the hands of the Sheriff. The creditor, indeed, might insist, that the Sheriff should hold the money, once in his hands, for him, and he might look to the Sheriff for it. But, as between the debtor and creditor, the latter is not bound do so ; for, as the debtor got his money back, or had the use of it in another manner, before it was conclusively applied, by being actually paid to the creditor, or by the Sheriff’s return of the. fieri facias, the creditor ought to have his election to raise it from the debtor. The case is much the same, as if a Sheriff seize goods to the value of the debt, and the debtor got them before a sale; and that is certainly not a satisfaction. The officer's memorandum on the writ, of the levy or of satisfaction, can make no difference in either case, because it is not a return, until he makes it to the Court; and, in the meanwhile, it is in his power, and, indeed, it is his duty, to alter it, as the truth may require. It would be a reproach to the law, if judgments and executions oould be thwarted by a trick like this, which is too much against morals, not to be also against law.

Per Ci/kiam, Judgment affirmed.