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.
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.