McNair v. Ragland, 17 N.C. 42, 2 Dev. Eq. 42 (1831)

June 1831 · Supreme Court of North Carolina

17 N.C. 42, 2 Dev. Eq. 42

Edmund D. McNair v. Thomas Ragland.

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.

At this term, Scawell. Gaston apd Badger, for the plaintiff,

moved for several writs of fieri facias on the decree entered against the defendant at the last'term, (ante 1 voL 516) directed to the sheriffs of several different counties; suggesting that the defendant removed his slaves from comity to county, so as to prevent a seizure of them.

The counsel admitted, that such practice had not been common in this State, buteontended that it was perfectly well settled in England ; and they cited Tkill’s Practice 1032. Primrose v. Gibson '(16 Eng. Com. Law 73) and Miller v. Parnell (l Id. 414.)

Nash & Winston, for the defendant.

Huketn, Judge.

-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 nát yet prevailed generally in this State; thoug'h in one part of it, I learn, that, 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 tile practico 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 debtj which is the more necessary here, since a most valuable portion of the property of our citizens as so easily removed from, one county to another. And we are glad to find, that it is a well known pro-ccedmg in England, to sue out as many executions as the party chooses ; he taking care how he uses them. For if lie 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, Ja. and proceed on it, he cannot execute á 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 offi,. 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 given ■the proper credit. ■ ■

Tf a fi. fa and ter cannotbe executed until the former is returned.

Mr. Tiild. states tbe suing out of two writs offi. fa. to be a settled practice (Tidd’s Pr. 1032)-- A ad the cases of Miller v. Parnell and Primrose v. Gibson. are instances 0f & f.fa. and a ca. sa. issued, at once. There were motions to set them aside ; hut the court said it was per-fecfly 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 ^¡ie effects. The result of our examination is, that the plaintiff may sue out what executions, and as many ox them as lie chooses ; but he acts on them wrongfully, or irregularly, at his peril.

Pee, Curiam. — Motion aexowed.