Opinion
(June Term, 1831.)
1. As many executions, of any kind, as the plaintiff chooses may be sued out on the same judgment; but if executed wrongfully or irregularly, it is at his peril.
2. If a fi. fa. and a ca. sa. are both sued out, the latter cannot be executed until the former is returned.
AT this term, Seawell, Gaston, and Badger, for plaintiff, moved for several writs of fieri facias on the decree entered against the defendant at last term ( 16 N.C. 516), directed to the sheriffs of (43) several different counties, suggesting that the defendant removed his slaves from county to county so as to prevent a seizure of them.
Nash Winston for defendant.
The counsel admitted that such practice had not been common in this State, but contended that it was perfectly well settled in England; and they cited Tidd's Practice, 1032; Primrose v. Gibson (16 Eng. Com. Law, 78), and Miller v. Purnell (1 ib., 414).
A motion has been made in this case for liberty to sue out two or more writs of fieri facias to different counties. Such a practice has not yet prevailed generally in this State, though in one part of it, I learn, at one time, it was common to return, in vacation, a writ to one county and take out another for a different county. The convenience and utility of the practice are so apparent that the Court felt from the beginning no difficulty in granting the motion but the want of a precedent. It is just and reasonable to give a creditor every facility for the security and collection of his debt, which is the more necessary here, since a most valuable portion of the property of our citizens is so easily removed from one county to another. And we are glad to find that it is a well-known proceeding in England to sue out as many executions as the party chooses, he taking care how he uses them; for if he abuse the process, the court would unhesitatingly set it aside, and leave him exposed to the action of the person aggrieved. If he sue out a fi. fa. and proceed on it, he cannot execute a ca. sa. until a return of the other, and a proper credit on the process against the body. This is necessary, that the officer may know the sum for which he detains the prisoner. And he levies both writs of fi. fa. under a responsibility for seizing too much. He must take care not to sell upon the second seizure until he has done so under the first, and (44) given the proper credit. Mr. Tidd states the suing out of two writs of fi. fa. to be a settled practice (Tidd's Pr., 1032). Miller v. Purnell and Primrose v. Gibson are instances of a fi. fa. and a ca. sa. issued at once. There were motions to set them aside, but the court said it was perfectly regular — only the ca. sa. could not be acted on after a levy of the fi. fa. until either a sale or due discharge of the effects. The result of our examination is that the plaintiff may sue out what executions, and as many of them, as he chooses; but he acts on them wrongfully, or irregularly, at his peril.
PER CURIAM. Motion allowed.
Cited: Ferral v. Brickell, 27 N.C. 69; Wheeler v. Bouchelle, ib., 585; Adams v. Smallwood, 53 N.C. 259.