Halifax County NcArchives Court.....Scott, Vs. Hill 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 8, 2008, 3:34 pm

Source: North Carolina Reports
Written: 1811-18

January Term 1812.


JOHN SCOTT'S EXECUTOR v. JORDAN HILL, Late Sheriff of Franklin. 

From Halifax.

A having recovered a judgment against B, sued out a writ of fieri facias, 
which the sheriff levied upon two negroes, and returned his levy on the 
execution. A then sued out another fi. fa. instead of a venditioni exponas: 
Held, that A, by suing out a fi. fa. after the return of the levy, discharged 
the levy, and was not entitled to a distringas against the sheriff to compel 
him to sell the negroes.

This was a motion for a distringas to issue to compel the defendant to expose 
to sale two negroes, Anaca and Clary, and one hay horse, theretofore levied on 
by him, in virtue of an execution of Joseph Scott, assignee, etc., against 
Durham Hall and William Brickell. The motion was founded on the following 
facts, viz.: Joseph Scott obtained judgment against Durham Hall and William 
Brickell, in Franklin County Court at June term, 1792; a fi. fa. issued to 
September term, which was returned by the sheriff, "stayed by plaintiff's 
attorney." Another fi. fa. issued to December term, on which the sheriff 
returned that he had "levied execution upon two negroes, Anaca and Clary, and 
one bay horse, and that he had not sold for want of bidders." Instead of suing 
out a venditioni exponas, commanding the sheriff to sell the property levied 
on, the plaintiff sued out to March term a writ of fi. fa., which the sheriff 
returned "stayed by plaintiff's attorney." Another fi. fa. was sued out to 
June term, which the sheriff returned "levied on two negroes, Anaca and Clary, 
two head of horses, etc., not sold, for want of bidders." A writ of venditioni 
exponas was issued to September term, on which the sheriff returned "no sale 
for want of bidders." Another venditioni exponas was issued to the next term, 
which was stayed by plaintiff's attorney, and then a writ of fi. fa. was 
issued, which was levied on some property of the defendants, and a sale being 
made, the property sold for ten cents only. The plaintiff then sued out a 
venditioni exponas, commanding the sheriff to sell the negroes Anaca and 
Clary, and the bay horse, first levied on; and in the meantime, J. Foster 
having been appointed sheriff, he returned on this writ, that "no such 
property was to be found." Whereupon a motion was made, that a distringas 
issue to compel Jordan Hill, the late sheriff, who had levied on the two 
negroes and the horse, to sell the same; and whether such a motion should be 
allowed was referred to this Court.

Taylor, C. J. It may be laid down as a principle that a levy may be discharged 
by the act of the plaintiff. There are authorities to that effect, and the law 
may be considered as settled. When one fi. fa. is issued against the property 
of the defendant, it ought either to be satisfied or discharged before another 
is sued out; otherwise, a plaintiff might wantonly harass a defendant by 
multiplying executions, and sending them to different places, and levying to 
an amount greatly beyond the debt. The two executions in this case are 
incompatible with each other, and both cannot subsist at the same time. The 
first ought to have been proceeded on and its final event known before a 
second was ordered. The suing out of the second must be considered as a 
dereliction of the first; for it is to be presumed that a second would not 
have been ordered by the plaintiff's attorney if he meant to proceed on the 
first. It would be an extreme hardship upon the sheriff to distrain him to 
proceed on an execution which the plaintiff himself has abandoned by every act 
short of a positive discharge.

Cited: Smith v. Spencer, 25 N. C., 264.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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