Poutz v. Duplantier

The maker of the note iscer-tainly, for the present, at rest, while property of his, sufficient in the estimation of the sheriff has been sold. This, however, is not satisfaction, even as to him. For, if negroes have been taken *333and sold on the legal credit, and the purchaser and his sureties fail, and the negroes die, still will the maker be liable to have other property taken-for a note with surety, and a mortgage on the ne-groes, are not gold and silver, and the constitution of the United States has provided that no stare shall make any thing but gold and silver a tender in the discharge of a debt. Art. 1, sect. 8.

It is true, it is stated it several elementary writers, that "although the holder of a bill may issue "execution against the person of all the parties. "he cannot, after levying on the goods of one, is"sue a fieri facias to affect the goods of another." Chitty on bills, 274. Swift on bills, 328. Maxwell's Pock. Dict. 115.

We take the iiieaning of this position to be, that if there be two persons, bound in a note or bond, and a joint suit be brought against theta, and judgment had, after taking one of them under a Ca' sa', execution may issue against the goods of the other it being now settled that an execution against the person of any one of the parties to a bill, we not discharge the others, though with respect to him, it is a full satisfaction of thedebt. 4 T. R. 285. And if execution issue against the property of both, and be levied on that of oneof them to, anamount sufficient to pay the judgment, the other will be protected: the *334property seized appearing on the record to be the property of the defendants. But if several suits be brought, and judgments be had, separate executions will issue against the parties bound, and their several properties may be taken and proceeded against, until satisfaction be had, that is to say, gold or silver coin received, to the amount of the judgment. On that event and not till it happens, will the party, whose property remains unseized or unsold, succeed in arresting the process of the plaintiff; and even tis will not be done, till the costs are paid in the suit against him.

In order to satisfy us that such is the meaning of these gentlemen, we have only to examine the authorities they quote in support of the principle they advance. The first is Windham vs. Trall, Strange, 515. The plaintiff had judgment in two suits, against the two parties to a note; and, on tender of the principal and costs in one suit, and of casts in the other, the court ordered execution to be stayed.

This case proves only, that the plaintiff was not to be permitted to proceed, for the principal, against one of the defetidants, after it had been tendered to him by the other. Chitty and Maxwell cite no case but this.

Swift, in the margin of the article quoted, cites besides Strange, 2 Vesey, 115. 2 Dallas, 115. Bayl. 86. Vesey and Dallas support another *335part of the same paragraph, which has no bearing on this question. Bayley is not within our reach,

The converse of the proposition, which the defendant's counsel has thus endeavored to support, is, however, established in Dike vs. Mercer, 2 Shower, 394, where two men were bound jointly and severally, and judgment and execution had against one of them, and his goods seized, but the sheriff had not satisfied the plaintiff nor sold the goods: and in an action against the other obligee, he pleaded this matter, and it was held to be no plea; but it was held it would have been a good plea for that defendant, against whom the judgment and execution was obtained, if he had been sued again. 2 Ld. Raym. 1072.

The only differenc between that case and the present, is, that the property of the defendant in the first action, the co-obligee of the defendant in this, has been sold: but the money has not yet been made; satisfaction has not been received, and this is all important. An obligee is not discharged by the injury whichhe sustains, but by the money which the plaintiff receives-that alone dissolves the obligation and destroys the plaintiff's right, anduntil this right be destroyed, the plaintiff may use every legal means against all hisdebtors, which the laws and his contracthave provided for the payment of the debt. The seizure of land, ne-goes, or personal property, followed by a sale *336which has not produced gold or silver, creates no satisfaction.

Motion denied.