SHERWOOD EX REL. STATE BANK V. COLLIER.

13 DEVEREUX LAW, 380.]

A PAYMENT OF ONE OF TWO SEVERAL JUDGMENTS, obtained upon the same demand, discharges both, though one judgment was against the principal, the other against the surety.

THE PAYMENT of a Joint DebT, by one of the obligees, discharges it as to all.

A PAYMENT BY A JOINT DEBTOR is regarded in the light of a purchase, where, for the purpose of keeping the joint security alive, he takes an assignment in the name of a stranger.

ACTION upon an administration bond given by Wm. B. Green, with the defendant as surety. The breach laid was the nonpayment by Green of a judgment obtained by the relators against his intestate. Performance was pleaded.

The case made was as follows: Caswell, the intestate, died in 1815, indebted to the state bank on a note for six hundred and thirty dollars, with Hooks as surety. In 1816 the bank obtained upon this a judgment against his administrator, Green, but the execution thereon was returned nulla bona. Hooks, the surety, was then sued and a judgment against him obtained, which was by him satisfied in 1823. This action was brought in 1829. The plaintiff suffered a nonsuit in consequence of the charge to the jury that the payment by Hooks of the judgment against him barred the action.

J. H. Bryan and Mordecai, for the plaintiff. Plaintiff was entitled to recover if, when Hooks paid the judgment against himself, he intended not a satisfaction but a purchase: Governor v. Griffin, 2 Dev. Law, 352. Nor is satisfaction of a judgment against an indorser per se satisfaction of the judgment obtained against the principal: Clason v. Morris, 10 Johns. Rep. 524.

RUFFIN, J. (after stating the facts). I suppose the present action is brought for the benefit of the surety, Hooks, to avoid the effect of the statute of limitations, or a disbursement of the assets subsequent to the judgment of the bank against Green, which might prevent an effectual recovery in a suit in Hooks'

own name.

But in the case stated, I think the present action equally ineffectual. Since the statute of 4 Anne, payment discharges a judgment as effectually as entering satisfaction of record. Here there was full payment. It was intended as such by Hooks, and so received by the creditor. A payment by any one of two or

more, jointly, or jointly and severally bound for the same debt, is payment by all, and any of the parties may take advantage of it and plead it to an action brought by a satisfied creditor, or in his name by the sureties. It is true, that if a payment be not intended, but a purchase, there is a difference. But that can only be by a stranger, or by using the name of a stranger, to whom an assignment can be made when there is but a single security, and that one upon which all the parties are jointly liable. This is upon the score of intention, and because the plea of payment by a stranger is bad upon demurrer. If the assignment of a joint security be taken by the surety himself, there is an extinguishment, notwithstanding the intention, because an assignment to one, of his own debt, is an absurdity. Where the securities are separate, as several bonds, or a several judgment upon a joint and several note, which is the case here, probably an assignment may be made to the surety himself, since he is no party to the judgment. But if that can be, clearly nothing but a plain intention, evinced by an assignment, to keep up the judgment, can have that effect. Upon the face of the transaction it is a payment, on which Hooks could have maintained assumpsit in his own name. That shows that this suit is barred; for if it be not, the original creditor, and the surety, may both recover the same debt.

This case is just the reverse of Hodges v. Armstrong, 3 Dev. Law, 253. That suit was brought in the name of the surety, who had taken an assignment to a stranger, and did not intend a satisfaction. This, in the name of the first creditor, who has received payment, and did intend a satisfaction. Both decisions are on clear grounds, and are supported by numerous authorities; amongst them I recollect Church v. Bishop, 2 Ves. sen. 371; and Wallington v. Sparks, Id. 569.'

Per CURIAM. Judgment affirmed.

The principal case is referred to as authority for the doctrine that the payment of a joint debtor will be regarded as a purchase of the joint security where, for the purpose of keeping it alive, he takes an assignment in the name of a stranger, in the subsequent cases of Brown v. Long, 1 Ired. Eq. 190; Null v. Moore, 10 Ired. 324; Hanner v. Douglass, 4 Jones Eq. 262; Runyon v. Clark, 4 Jones, 52.

1. Woffington v. Sparks.

LUCAS . WASSON AND HARDIN.

[3 DEVEREUX LAW, 398.]

TRESPASS OR TROVER WILL LIE FOR ONE CO-TENANT of a chattel against the other, only upon the destruction of the joint property or upon such a disposition of it as is tantamount thereto.

TROVER. Not guilty pleaded. The plaintiff and defendant, Wasson, had been joint owners of a quantity of cotton. This cotton, Hardin, the other defendant, had, at Wasson's request, removed to some place unknown to Lucas. The jury was charged that plaintiff was entitled to recover if they were satisfied that the cotton by its removal was placed so entirely beyond his reach and control as to be lost to him. Verdict for plaintiff. Defendants appealed.

DANIEL, J. One tenant in common of a personal chattel has as much right to the possession of it as the other; therefore, one tenant in common can not maintain trespass or trover against his co-tenant without showing that the co-tenant has destroyed the joint property: St. John v. Standring, 2 Johns. 468. It is not sufficient to show that the defendant took forcible possession of the chattel and carried it away: Heath v. Hubbard, 4 East, 121, or that he changed its form by applying it to the use it was intended for: Fennings v. Greenville, 1 Taunt. 241. In the present case, it was in evidence that the defendant Wasson did not retain the possession of the cotton, but caused it to be sent off by the other defendant to a place unknown to the plaintiff, so that as to him it is wholly lost, and from its perishable nature, must be destroyed as far as his interest in it is concerned. We think the charge of the judge was correct, and the judgment must be affirmed.

Per CURIAM. Judgment affirmed.

As to when trespass or trover will lie for one co-tenant against the other, Bee Harman v. Gartman, 18 Am. Dec. 656, and Hyde v. Stone, Id. 501; Gib son v. Vaughn, 23 Id. 143.

MORDECAI V. SPEIGHT.

[3 DEVEREUX'S LAW, 428.]

A PURCHASE UNDER AN EXECUTION SALE is not affected by the fact that the sale took place the day after the return day inserted in the writ, but before the actual return, nor by an irregularity in the postponement of the sale from the day first fixed upon. Otherwise if the irregularities of the sale are so glaring and patent that they must have been known to the purchaser.

EJECTMENT. A writ of execution, tested the fourth Monday of August, and made returnable the fourth Monday of November, 1829, against Robert Amason, had been issued from Edgecomb county court, to the sheriff of the county. In virtue of this writ the sheriff fixed the sale of Amason's property for the fourth Monday of November, but upon this day postponed the sale to the next, owing to an impression that Amason would discharge the judgment, but as this was not done, he on the next day proceeded in the sale, and the piece of land now in controversy was then bid in by a predecessor of defendant. Plaintiff claimed under a conveyance from Amason, bearing date between the fourth Monday of August and the fourth Monday of November.

The judge below was of opinion that a sale made by the sheriff after the return day of the writ was void, and so instructed the jury. Verdict for plaintiff, and defendant appealed.

The Attorney-general and Gaston, for the defendant.

Hogg, for the plaintiff.

RUFFIN, J. There are two questions in this case, distinct in themselves, though relating to the same subject. The first is, whether the sale of land under a fi. fa. be good, if made on the day after the process is made returnable, and before it be returned, and during the term of the court to which it is returnable. This is answered by the case of Lanier v. Stone, 1 Hawks, 329, affirmatively, and we see no reason for being of a different opinion.

The second is, whether the acts of assembly directing the manner in which sheriffs shall sell lands and slaves, Taylor's Revisal, c. 1096 and 1153, do not render such a sale as this void. This, we think, is answered negatively by Pope v. Bradley, 3 Hawks, 16. That case is said not to be in point, because the sale was opened, and because the reason for adjourning it was a good one. Those circumstances were adverted to for the purpose of establishing the propriety of the sheriff's conduct, even had he been called on to answer in that action; but not as establishing the purchaser's title. For the chief justice plainly says that on no principle could an irregularity in the adjournment annul the sale, and he founds himself in this on the act being directory to the sheriff, and giving a penalty against him. And those are the grounds of the opinion we entertain. It would be dangerous to purchasers and ruinous to defendants in execution, to require bidders to see that the

sheriff had complied with all his duties. It is said, however, that this will allow sales to be made at other places, besides the court-house, as the same section fixes both the place and the day. The difference is this, a purchaser knows, and is bound to take notice, that the sheriff can not sell but at the court-house, and that a sale elsewhere must be void. But the sheriff may sell on Monday, or in certain cases, and under certain regulations, he may also sell the next day. Now a bidder can no more know whether those provisions have been complied with than whether the sale has been duly advertised. We think, indeed, that postponing the sale entirely by proclamation, is the same for this purpose, as beginning and then adjourning it. But that respects the remedy against the sheriff, and is not the principle which governs this case. For these reasons the instructions given in the superior court are deemed erroneous, and the judgment is reversed.

Per CURIAM. Judgment reversed.

That the title of a purchaser at an execution sale will not be defeated by Irregularities in the conduct of the sale, see Armstrong v. Jackson, 12 Am. Dec. 225; Cox v. Nelson, 15 Id. 89; Blight's Heirs v. Tobin, 18 Id. 219.

The principal case has been referred to as authority for the doctrine that no ordinary irregularity in the proceedings will defeat an execution sale, in Brooks v. Ratcliff, 11 Ired. 321; Reid v. Largent, 4 Jones, 454, and Collins v. Nall, 3 Dev. 457.

On the other hand, it has been cited as authority to the effect that if the irregularities are of such character that they must be presumed to have been known to the purchaser, the sale shall be avoided, in Kelly v. Craig, 5 Ired. 129; State v. Rivers, Id. 297.

STATE V. ROPER.

[3 DEVEREUX'S Law, 473.]

LARCENY CAN NOT BE OF LOST GOODS by their finder, if his original taking was without a felonious intent, though followed by a felonious asportation.

INDICTMENT for petty larceny, and not guilty pleaded. The defendant had, at an exhibition of wild animals, picked up a shawl which had been lost by its owner, his attention having been called thereto by an exclamation of a bystander, "There is a shawl," had shaken the dirt from it, placed it on the chain separating the spectators from the cages of the animals, and leaned his body over it. All this was done while the ring was full of spectators. After a short lapse of time, the defendant