Fish v. Wiseman, 1 N.C. 192, 1 Mart. 192 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 192, 1 Mart. 192

Sir William Fish vs. Wiseman.

Pasch. 2 Car.

WISEMAN had judgment in debt, in C. B. against Sir William Fish, and after the year, without a scire facias, took a capias against him, and arrested him, whereupon Wiseman brought error here, and the judgment was affirmed, but the execution reversed and Sir William discharged. Wiseman took him up again by an alias capias ad satisfaciendum, without and scire facias, out of the King's Bench, and the sheriff returned a cepi, and Crauley, Serj. and Banks, moved that he be discharged.

1. Sir William, being once taken in execution in the C. B. and let at large, on security, upon the writ of error, no new execution can issue, if he refuses to surrender himself in discharge of his securities. 16 H. 7. 2. 2 Ed. 4, 8. One condemned in London, is sued by another in B. and comes to London *to attend to his suit, and his arrested on an execution, and discharged by writ of privilege in the C. B. He cannot be taken again in London on the execution.

Doderidge, J. and Jones, J. e contra.

There is a difference, where one is legally taken on an execution, and afterwards discharged by a writ of error, and afterwards judgment is affirmed. A new capias does not lie against him, but execution shall be awarded against his securities, if he does not surrender himself. But here he never was legally in execution, for the execution was reversed: therefore he may be taken again.

Hyde, C. J.

It is like the case where one recovers on a simple contract. If after, the judgment is reversed, he may sue again on the contract; though the action did not lie, while the judgment was in force.

Richardson.

The same distinction was taken in 2 E. 4. 16. in a case of mainprize. In the first, execution lies against the securities. But in the last no execution can be against them.

Doderidge, J.

Dyer 60. One taken in execution is discharged by priviledge of Parliament: when they rise, he may be taken again.

2. This was an al. capias where there was no capias before: but to this no answer was given.

3. The capias was in another county, and the judgment was in London.

4. He was taken on a capias, after the year, and in another court.

The court agreed to the resolutions in Garnon’s case, 5 Rep. 88. The Common Bench cannot award a capias after the year, and the clerks said that the precedents were e contra; that he may be taken without a scire facias.

Banks moved that there was error, and the court ought to supercede the capias, as in 35 H. 6. 45. Supersedeas quia et ronice et improvide. Marget and Harvey. Action on the case in an inferior court, the first process was a capias and therefore the judgment was reversed. T. 2 Car. rot. 1478. Palm. 447. 445. Godb. 371.