1. A seizure of goods upon an execution is a constructive payment only where unless so considered an injury will occur — as where the sheriff has seized, but will not sell.
2. But in all cases where the defendant has recovered possession of the goods, either with or without the consent of the sheriff, the seizure is no payment, and a new execution may issue — and this as well where there are several defendants as where there is but one.
RUFFIN, J.
The idea upon which this petition goes is that the seizure of property under a fieri facias is a discharge of the debt. It is constructively so in certain cases — that is, where the sheriff really takes sufficient to pay the debt, and will not dispose of it; and to debt on the judgment it may be pleaded; for it would be wrong to enforce the judgment by a second suit, and also keep the property on (342) the first execution. But if the defendant was never deprived of his property by the sheriff, or if he was, and has got it back again, either with or without the consent of the sheriff, it would be monstrous to say that in such a case the defendant had paid his debt. The levy on property is not actual payment which the law always aims at. It is only constructively so to prevent wrong. It is deemed a payment in those cases where if it were not the defendant would be twice deprived of his property on the same judgment. In all other instances it is no payment. Without citing other authorities these positions will sufficiently appear from Clark v. Withers, 1 Salk., 322, and Taylor v. Baker, 2 Mod., 214. It will be seen from this that it must follow that the petitioners can have no relief; for the plaintiff has received his money from no quarter. All the defendants are but one to this purpose. Payment by one is payment by all; but there must be payment by some one. Here there is none.
PER CURIAM. Petition dismissed.
Cited: Binford v. Alston, 15 N.C. 353; Eason v. Petway, 18 N.C. 46; Shaw v. McFarlane, 23 N.C. 218; Gatewood v. Burns, 99 N.C. 360; Aldridge v. Loften, 104 N.C. 126.
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