WalKER, J.,
after stating the case: There are three kinds of executions; one which is issued against the property of the debtor, another against'his person, and still another for the delivery of the possession of real or personal property, or for such delivery with damages, for unlawfully withholding the same. Revisal, sec. 616. An execution against the person of. the debtor may be issued, after the return of an execution against hjs property unsatisfied, if the action be one in which the defendant might have been arrested. Section 625. Turning to the provisions in regard to arrest and bail, we find that a defendant may.be arrested and held to bail when as a public officer he has received money or property and embezzled or fraudulently misapplied the same, or when he has. been guilty of any misconduct or neglect in office. Revisal, sec. 727.
The complaint in this case alleges that defendant embezzled .or fraudulently misapplied public funds which had come into his hands as sheriff of the county, which, of course, is also misconduct in office; and the jury, in response to the issues, have found the facts as alleged in the complaint, and the court, in its judgment, refers to these findings and expressly makes them a part thereof, and this is done with sufficient certainty and formality for the issuance of an execution, if the plaintiff otherwise is entitled thereto. But we do not think that, in any view, the request of the plaintiff should have been granted — at least as a matter of right; and this brings us to consider the nature of an execution against the person and when it should issue.
Our statute once provided that where the right to arrest is determined by the nature of the action, or, in other words, where facts stated in the complaint, and necessary to support the cause
of action, are such as to authorize an arrest, no order of arrest need be obtained before judgment in order to authorize an execution against the body, and, conversely, no execution against the person can issue upon a judgment where no order of arrest has been previously obtained in the action, unless the facts stated in the complaint necessarily import liability to arrest, and unless the cause of action and the cause of arrest are identical. If the grounds of arrest are extrinsic to the cause of action, and the cause of action is not one which of itself would entitle the plaintiff to a body, execution, without a prior order of arrest having been granted, the fact that the complaint contains allegations which would entitle the plaintiff to an order of arrest will not authorize the issuance of such an execution. It is not necessary or proper to set forth such facts in the complaint, because they constitute no part of the cause of action and are not relevant or necessary to be proved. 8 Enc. of Pl. and Pr., p. 622.
But this has been somewhat changed by the act of 1891, ch. 541, so as to make it sufficient for the issuance of a personal execution that the complaint alleges a cause of arrest, “whether the same be necessary to the cause of action or not.” Pell’s Revisal, sec. 625.
The procedure in all such cases has been fully discussed and settled by us in
Ledford v. Emerson,
143 N. C., 527, and we adhere to what is there said. That ease is in perfect accord with
Peebles v. Foote,
83 N. C., 102;
Huntley v. Hasty,
132 N. C., 280, and
Kinney v. Laughenour,
93 N. C., 326, when the facts of the several cases are considered, for they differ materially.
In the
Peebles case
the statement of the cause for the arrest was not an essential allegation of the principal cause of action, and the Court refused the writ because no order of arrest had been previously served, assigning the case to the second class of those in which such an execution can issue, upon the ground that the cause of arrest is collateral and extrinsic to the cause of action.
In the
Kinney case
the cause for arrest and the cause of action were, identical (seduction of plaintiff’s daughter), which was found by the jury, which finding passed into the judgment and was the basis of it.
The Huntley case
is in the same category,
the two
causes being the same, assault and battery. The same may be said of
Carroll v. Montgomery,
128 N. C., 278.
The question whether it was necessary that there should, be an affirmative finding by the jury of the cause for the arrest upon an issue submitted to them was not, therefore, presented in those cases, as in three of them such fact was found, and in the
Peebles case
the Court held that plaintiff was not entitled to
the
execution, because there was no proper allegation in the complaint and no order of arrest had been served. We are satisfied with the reasons given in
Ledfords case
for requiring a finding by the jury of the cause for the arrest. It is evidently approved in
Stewart v. Bryan,
121 N. C., at p. 50, in which the Court said: “It will not do to carry the doctrine of
Peebles v. Foote
under section 447 of The Code, as amended by the act of 1891, to the extent contended for in the argument of plaintiff— that, because there is an allegation in the complaint, this fact entitles the plaintiff to an execution against the body of the defendant, whether the plaintiff recovered a judgment against the defendant or not. To sustain this position would be in effect to nullify the Constitution.” Of course, the judgment referred to is one based upon such a finding of fact, for no one "would ever suppose that a plaintiff would be entitled to any kind of execution if he failed to recover in the action. We have discussed this matter, because it might be inferred (Pell’s Revisal, sec. 625 and note) that the
Ledford ease
was not altogether in harmony' with the other cases, when, as we have seen, there is not the least conflict between them, but
the
other cases fully sustain
Ledford v. Emerson.
The following authorities sustain the same view:
Elwood v. Gardner,
45 N. Y., 354, 355;
Smith v. Knapp,
30 N. Y., 581. As to the general practice in such cases, 8 Enc. of Pl. and Pr., p. 622
et seq.
We think that
McAden v. Banister,
63 N. C., 478, is virtually to the same effect. It was there determined that the right to a body execution depended upon what appeared in the judgment.
Justice Rodman
(who was formerly, one of the Code Commissioners) says in that case: “The execution must be based on what appears on his docket, and nothing
else. It may be asked, Was a copy of tbe affidavit and order of arrest a material part of tbe justice’s judgment, and therefore required to be docketed with it? We are of opinion tbat, for tbe purpose of enabling him to issue a personal execution, tbey were; for tbis purpose tbey materially qualified tbe judgment, and gave it an effect it otherwise would not have. For tbe issuing of an execution against tbe lands of tbe defendant tbey are not material parts of tbe judgment, as for tbis purpose tbey neither added to nor impaired it.”
But it is unnecessary to prolong tbe discussion of tbis subject.
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WalKER, J.,
after stating the case: There are three kinds of executions; one which is issued against the property of the debtor, another against'his person, and still another for the delivery of the possession of real or personal property, or for such delivery with damages, for unlawfully withholding the same. Revisal, sec. 616. An execution against the person of. the debtor may be issued, after the return of an execution against hjs property unsatisfied, if the action be one in which the defendant might have been arrested. Section 625. Turning to the provisions in regard to arrest and bail, we find that a defendant may.be arrested and held to bail when as a public officer he has received money or property and embezzled or fraudulently misapplied the same, or when he has. been guilty of any misconduct or neglect in office. Revisal, sec. 727.
The complaint in this case alleges that defendant embezzled .or fraudulently misapplied public funds which had come into his hands as sheriff of the county, which, of course, is also misconduct in office; and the jury, in response to the issues, have found the facts as alleged in the complaint, and the court, in its judgment, refers to these findings and expressly makes them a part thereof, and this is done with sufficient certainty and formality for the issuance of an execution, if the plaintiff otherwise is entitled thereto. But we do not think that, in any view, the request of the plaintiff should have been granted — at least as a matter of right; and this brings us to consider the nature of an execution against the person and when it should issue.
Our statute once provided that where the right to arrest is determined by the nature of the action, or, in other words, where facts stated in the complaint, and necessary to support the cause
of action, are such as to authorize an arrest, no order of arrest need be obtained before judgment in order to authorize an execution against the body, and, conversely, no execution against the person can issue upon a judgment where no order of arrest has been previously obtained in the action, unless the facts stated in the complaint necessarily import liability to arrest, and unless the cause of action and the cause of arrest are identical. If the grounds of arrest are extrinsic to the cause of action, and the cause of action is not one which of itself would entitle the plaintiff to a body, execution, without a prior order of arrest having been granted, the fact that the complaint contains allegations which would entitle the plaintiff to an order of arrest will not authorize the issuance of such an execution. It is not necessary or proper to set forth such facts in the complaint, because they constitute no part of the cause of action and are not relevant or necessary to be proved. 8 Enc. of Pl. and Pr., p. 622.
But this has been somewhat changed by the act of 1891, ch. 541, so as to make it sufficient for the issuance of a personal execution that the complaint alleges a cause of arrest, “whether the same be necessary to the cause of action or not.” Pell’s Revisal, sec. 625.
The procedure in all such cases has been fully discussed and settled by us in
Ledford v. Emerson,
143 N. C., 527, and we adhere to what is there said. That ease is in perfect accord with
Peebles v. Foote,
83 N. C., 102;
Huntley v. Hasty,
132 N. C., 280, and
Kinney v. Laughenour,
93 N. C., 326, when the facts of the several cases are considered, for they differ materially.
In the
Peebles case
the statement of the cause for the arrest was not an essential allegation of the principal cause of action, and the Court refused the writ because no order of arrest had been previously served, assigning the case to the second class of those in which such an execution can issue, upon the ground that the cause of arrest is collateral and extrinsic to the cause of action.
In the
Kinney case
the cause for arrest and the cause of action were, identical (seduction of plaintiff’s daughter), which was found by the jury, which finding passed into the judgment and was the basis of it.
The Huntley case
is in the same category,
the two
causes being the same, assault and battery. The same may be said of
Carroll v. Montgomery,
128 N. C., 278.
The question whether it was necessary that there should, be an affirmative finding by the jury of the cause for the arrest upon an issue submitted to them was not, therefore, presented in those cases, as in three of them such fact was found, and in the
Peebles case
the Court held that plaintiff was not entitled to
the
execution, because there was no proper allegation in the complaint and no order of arrest had been served. We are satisfied with the reasons given in
Ledfords case
for requiring a finding by the jury of the cause for the arrest. It is evidently approved in
Stewart v. Bryan,
121 N. C., at p. 50, in which the Court said: “It will not do to carry the doctrine of
Peebles v. Foote
under section 447 of The Code, as amended by the act of 1891, to the extent contended for in the argument of plaintiff— that, because there is an allegation in the complaint, this fact entitles the plaintiff to an execution against the body of the defendant, whether the plaintiff recovered a judgment against the defendant or not. To sustain this position would be in effect to nullify the Constitution.” Of course, the judgment referred to is one based upon such a finding of fact, for no one "would ever suppose that a plaintiff would be entitled to any kind of execution if he failed to recover in the action. We have discussed this matter, because it might be inferred (Pell’s Revisal, sec. 625 and note) that the
Ledford ease
was not altogether in harmony' with the other cases, when, as we have seen, there is not the least conflict between them, but
the
other cases fully sustain
Ledford v. Emerson.
The following authorities sustain the same view:
Elwood v. Gardner,
45 N. Y., 354, 355;
Smith v. Knapp,
30 N. Y., 581. As to the general practice in such cases, 8 Enc. of Pl. and Pr., p. 622
et seq.
We think that
McAden v. Banister,
63 N. C., 478, is virtually to the same effect. It was there determined that the right to a body execution depended upon what appeared in the judgment.
Justice Rodman
(who was formerly, one of the Code Commissioners) says in that case: “The execution must be based on what appears on his docket, and nothing
else. It may be asked, Was a copy of tbe affidavit and order of arrest a material part of tbe justice’s judgment, and therefore required to be docketed with it? We are of opinion tbat, for tbe purpose of enabling him to issue a personal execution, tbey were; for tbis purpose tbey materially qualified tbe judgment, and gave it an effect it otherwise would not have. For tbe issuing of an execution against tbe lands of tbe defendant tbey are not material parts of tbe judgment, as for tbis purpose tbey neither added to nor impaired it.”
But it is unnecessary to prolong tbe discussion of tbis subject. Assuming, for tbe sake' of argument, tbat. plaintiff is entitled to a personal execution, bis motion tbat an order for it be inserted in tbe judgment was properly denied, as being premature. Tbe statute prescribes tbat such an execution can be issued only after a return of an execution against tbe property unsatisfied in whole or in part. Revisal, sec. 625. Tbe court could not anticipate such a juncture.
There is no finding tbat tbe defendant is insolvent. But tbe statute points out tbe remedy. It is by motion before the-clerk, upon return of tbe unsatisfied execution, for process against tbe person. If be refuses it, in a proper case, plaintiff may appeal and have bis decision reviewed and reversed. Such was tbe practice adopted and approved in
Kinney v. Laughenour, supra,
and
Huntley v. Hasty, supra.
8 Enc. of Pl. and Pr., pp. 631, 633.
We express no opinion as to plaintiff’s right to a personal execution, when properly applied for. • He contends tbat bis cause of action is so closely and intimately connected with defendant’s wrongful acts, for which be could be arrested, tbat tbey form really a part of its “warp and woof,” and for tbat reason be is entitled to the process, citing in support of tbis view, Brandt on Suretyship and Guaranty, sec. 180, p. 259, and sec. III. Again, it may be observed tbat plaintiff is but one of several sureties on tbe shériff’s bond, and tbe question is raiséd whether be can sue alone, and without them as joint plaintiffs, if be relies upon tbe equitable doctrine of subrogation. See 1 Brandt S. and G. (3 Ed.), sec. 317 and notes, especially note 19 and cases;
Hall v. Myers,
90 Ga., 674; Sheldon on Subrogation, sec. 27. Must tbe entire indebtedness be paid and all of tbe
sureties join in one action against the sheriff? Another question is, whether the doctrine of subrogation applies to such a case at all, so as to invest the paying surety or sureties with all the creditor’s rights and remedies, so that they may, as one of the remedies, arrest the defendant. Sheldon on Subrogation, secs. 86, 87 and 136; Brandt S. and G. (3 Ed.), sec. 317 and note, 324 and 328;
King v. Kirby,
28 Barbour (N. Y.), 49. These and perhaps other questions may arise in the further progress of the case, but we will express no opinion upon them until they are thus reached, and we are required to do so. There-was no error in the judgment, nor in the other rulings to which exception was taken.
No error.