Without question, if there be a levy upon personal property, it operates as a satisfaction of the fi. fa pro tanto, unless the plaintiff show that it was unproductive. But he is not confined to one way of doing this. If, after the levy, he finds it is not the property of the defendant and he orders the levy dismissed, surely this is no satisfaction. The burden of proof is upon the plaintiff, but it would, as it seems to us, be very absurd to compel the plaintiff to go on to sell, or to litigate, when it is plain that the property is not subject.
It is admitted that the mules, the levy upon which was dismissed, were covered by the mortgage of the plaintiffs in error, and that if they had been sold under the distress-warrant, that mortgage would have taken the money, if it was foreclosed. If not foreclosed, the property would have brought nothing, unless it was sold under agreement. In any event, it would have been folly to go on with the levy, under the distress-warrant, and when the levy was dismissed, the property turned back to the defendant in the distress-warrant, the property was no longer a credit on the fi. fa. *657We have looked closely into the cases referred to, but in none of them did it appear, as here, that the plaintiff making the levy, even with the utmost diligence, could have realized nothing from the property.
We are not able to see how the fact that this levy of the distress-warrant alarmed the defendant, so that, soon after the levy was dismissed, he ran away, carrying off the mules, can affect the case. Even in an action on the case for damages, it would be very difficult to sustain a recovery, for this reason, but surely that result is no reason why the holder of the distress-warrant should be charged with the value of the mules. It was the duty of the mortgagee to attend to his own business, and the holder of this distress-warrant only did his duty to the mortgagee when he dismissed this levy. It was not right that he should have the property sold, as it was bound under the mortgage, and there was not enough to satisfy it.
Judgment affirmed.