The plea relied on is payment. The evidence to
support the plea is the sheriff’s return to the execution on the original judgment levied on goods and land. If the return had been levied on goods generally there is no question but it would have discharged the debt. And we do not think that part of the return being levied on land alters the case. By the return it appears that the plaintiffs have taken in execution goods and land of the defendant to an amount sufficient to pay the debt. This is intended by the law on a general return. Though the sheriff cannot sell the land upon the fieri facias, yet the law gives full power to the plaintiff to satisfy his demand as well out of land as of goods. And shall a plaintiff, who has once appropriated of the defendant’s property goods or land sufficient to pay his debt, be at liberty to abandon the fund once placed in his hands and again resort to his general right of action against the defendant? We conceive he cannot. The Court are therefore of opinion that the return shown to the execution upon the original judgment supports the plea of payment and that the plaintiffs are not entitled to recover upon this scire facias.
Jury gave a verdict for defendants.