The specialought not to issue till that return : We will adhere to piece dents even where they cot»£5o© us so narrower limits than the reason of them requires.
Burnside v. Green, 3 N.C. 112, 2 Hayw. 112 (1800)
April 1800
·
North Carolina Superior Court
3 N.C. 112, 2 Hayw. 112
Burnside vs. Green, Aminisirator, &c. versus Witherspoon, Administrator of Nash.
'PLAINTIFFS in these causes had obtained judgments with» out any pleas on the part of the defendants doming their having assets : and an execution had issued in the first instance, •'.•.-'nmanding the sheriff to levy the debt de bonis te&tatoris si, &c, st «on. then de bonis propriis: And Judge Taylor, on ihecom-«da'.nt. of.ahe defendants, had issued a supersedeas. And now Woods argued, Aat there is not any book which warrants so ■»!?*:-or a proceeding. Even Pettif-i’s case, recorred by Lord Cand adverted to by Wentworth, page US, will not permit a fa. to be levied de bonis propriis, until a return of nulla bena„ Am: as to the cases in íhis-siate, II lywood’s Reports, 218, 293, ..... farther than to warrant a special fi. fa. aíc; r nulla bona re-•«men to a general one. Cases may happen wheie even that mod-: will be found subject to inconvenience; for suppose alter *113Sadgmeot, the personal chattel which the ev“lité w for ij.uririirg tbs plaintiiF’s demand-. should perish !'ri.-.\ "he -i-ii-'«ion ssus5.sc; j the sheriff would retara nulla hon.\ ¿a- epeeiri fi./a. woa-.á iinawdntelv kaue without g ving to ii-t .d! ,m,; 4nv opportaaity to discharge himself by shewing the .teoe.u* ¡cla of his assets. I should therefore contebd, we.e it not for P rifer’s esse, and the strong intimation given in the cases decide., in this state, that a scire facias should go 5 for there musí be a Mew judgment to suppe-tt this special jfi.ja.- — The first judgment will not, for that is to be levied de bonis lestatoris, itnd the damages de bonis propriis : and surely it is a little out oí the common course to give a new judgment in the absence of the defendant:,, upon the mere return of nulla Lena, that it should be levied de bonis propriis. However, what 1 wish to establish at present, is, that a specialJ?. fa* shall not issue until there be a return of nulla bona¡ he cited Impey, 405.