Mazyck v. Coil , 18 S.C.L. 101 ( 1831 )

Harper J.

delivered the opinion of the Court.

There is no doubt but that a fi. fa. and ca. sa. may be taken out and exist at the same time, on the same judgment, though only one can be executed. ' The execution of one supersedes the other. For the motion it was argued, that this fi. fa. was executed ; that a levy is prima facie a satisfaction, and must be so regarded until it has been disposed of and found insufficient: that this can only appear, legally on the return of the writ, upon which, according to the English practice, a new execution ought to issue only for the balance due, reciting that all the money was not levied on the first. 2 Bac. Abr. 719. Execution D. Such I suppose to be the English practice; but it is certain that the practice of this State has been immemorially different. A levy is regarded as a satisfaction until it has been disposed of and found insufficient. But as soon as it is disposed of, and found by the sheriff to be insufficient, he may, according to our practice, proceed to take a further satisfaction, and it cannot be material Whether it is by ánotherlevy, or by an execution of the ca. sa. in his hands. If the reasoning in support of the motion be correct, the second levy in this case was irregular. It was contended that the order .obtained at Kershaw Court was a subsequent proceeding on the fi. fa. We do not perceive how this can be regarded as a proceeding on the fi. fa. If the arrest was legal, and a satisfaction to all intents, the order was erroneous, and the plaintiff has obtained money to which he was not intitled. If after the arrest another levy had been made under the fi.fia. I suppose this would have been merely a trespass, as the fi.fia. was a nullity.

It was further argued that the law does not allow fractions of a day, and that the arrest ought not to have been made on the day the levy was disposed of. I think this is misconceived. The sheriff could not execute the ca. sa. until the levy was disposed of, because until then, the levy was presumed a satisfaction. But as soon as it was ascertained not to be a satisfaction, it was with relation to his right to enforce a further satisfaction as if no levy had been made. I suppose if another levy under the fi.fia. had been made on the same day, it would hardly have been questioned.

Motion refused.