McDowell v. . Robison

48 N.C. 535

• Court: Supreme Court of North Carolina
• Decided: August 5, 1856
• Status: Published

Opinion

Nash, C. J.

We see nothing in the case to induce us to disturb the judgment rendered in the Court below. No reason has been shown why the return of the sheriff was not according to law; nor can we well perceive how the sheriff could make any other return if the facts were as he stated them, and they are not disputed. A. fieri faeias had come to his hands, in favor of the plaintiff, against a man by the name of James R. Dyche, which he had duly returned, levied on certain property. From the term of the Court to which the process was returned, the clerk issued two writs, one a venditioni exponas and the other a fi,. fa. Upon the latter, the defendant returned that there was no property of the defendant upon which he could le-?y it, but that upon which he had previously levied, under the first fi. fa. ; and upon the former, no sale for the want of bidders. The regular course of the Clerk of the Superior Court of Burke to have pursued upon the return of tlie first fi. fa., would have been to have issued a venditioni exponas with the fi. fa. clause. If he had done so, the returns upon it, supposing the facts to be as alleged, would have been precisely what he has returned'—-no sale for the want of bidders under the venditioni ex-ponas, and no property of the defendant to be found except that already levied on under the previous fi. fa. It can make no difference that the writs were on different pieces of paper. The sheriff’s return was duly made, and there is no error in the judgment of the Court below.

Per Curiam.

'. Judgment affirmed.