p. 382Cumpston, administrator, &c. vs. Field and Bracket.Headnote
erifaciascannot issue, until tum of*a preyious execu-Demurrer to replication. The declaration was on a scire facias quare executionem non on a judgment obtained by the intestate against the defendants for 11843,54 in assumpsit, The defendants pleaded, that in the life time of the intestate a writ of fieri facias was issued upon the judgment obtained against them, directed and delivered to the sheriff of Onondaga, who, by virtue of the same, levied upon the property of the defendants to a large amount, to wit, to the amount of $5000, and subsequently sold the same to the full amount due on the execution; and averred that the sheriff had not made any return upon the execution, concluding with a verification and prayer of judgment. The plaintiff replied, that he ought not to be precluded from having his execution, because the sheriff of Onondaga did not sell the property alleged to have been levied upon for the full amount due on the execution. The defendants demurred, and the plaintiff joined.
I. R. Lawrence, for defendants,
cited Bacon’s Abr. 107, 124, 720, tit. Execution ; 2 Mod. 214 ; 2 Wilson, 82 ; 1 Salk. 318 ; 6 Taunton, 370 ; 1 Archbold’s Pr. 270 ; 2 Ld. Raym. 1072 ; 4 Cowen, 417 ; 7 id. 13.W. II. Seward,
The return of the previous execution was not necessary. This court refused to set aside a habere facias possessionem because a previous writ of possession was not returned. (9 Johns. R. 391.) Issue is taken by the replication upon the only material allegation in the plea, viz. the sale of the property to the full amount of the execution.By the Court,
The plea is perhaps liable to the objection of duplicity ; but this objection can be taken advantage of only by special demurrer. (1 Saund. 337, n. 3. 1 Chit. Pl. 513.) The plaintiff has seen fit to waive this advantage and to reply. To his replication there is a demurrer upon the ground that it does not traverse all the mate
p. 383rial facts contained in the plea. It is contended that the plaintiff cannot have execution until the former execution is returned. If this be so the demurrer is well taken. A seizure and sale under the execution, issued in the life time of the intestate, is admitted by the replication, and the allegation that the execution has never been returned is not denied. The plaintiff in replying only traverses and denies the allegation that the whole amount of the judgment was levied by the sale.
The seizure and sale being admitted, a second execution cannot regularly be issued till the former is returned. The second writ must recite the first and the return of the sheriff thereon. (2 Wilson, 82. 1 Salk. 316. 6 Taunt. 370. 1 Arch. Pr. 270.) In the case of Jackson, ex dem. Thompson, v. Stiles, (9 Johns. R. 391,) the court, on special application, and, it is to be presumed, for good cause shewn, permitted the plaintiff to have a second habere facias possessionem, the first not having been returned. It is evident that the party had not obtained the object sought by the first writ. A difference exists between a writ of possession and a fieri facias. The former directs a specific act, and if several such writs were to issue on the same judgment it could work no inconvenience to the defendant. All that could be done, whether there were one or more writs, would be to dispossess him and deliver to the plaintiff the identical premises recovered. ' Such would not be the case where several writs of fieri facias against the property of the defendant were issued; for thus several satisfactions for the same debt might be obtained. It is necessary that the court should see what had been done on the first writ to enable them to give proper directions on the second.
It is no doubt true, as the plaintiff contends, that where there are several facts set forth in a plea, all going to constitute a defence, his replication would be good if he traversed any one of these facts, without which the defence would be incomplete; but if any fact, not traversed, constitutes a defence, his replication is bad. Such is the character of the replication in this case, if it is true that the first writ must be
p. 384returned before the second can issue. If the fact put in issue by the plaintiff, that the property seized on the first execution did
not sell for enough to satisfy the judgment, should
be found for him, yet I hold that he is not entitled to another execution till it appear what has been done on the first.
Judgment for defendant on demurer, with leave to plaintiff to amend on payment of costs.