27th November, 1805, at Columbia, all the judges present, Trezevant, J.-delivered the opinion of himself, Grimke, Waties, * 1 and Brevard, Justices; Bay, J. and Wilds, J. gave no opinion.
Trezeyant, J.
Prom the beginning, I was always of opinion, that this ca. sa. was legally issued* and this upon general principles of reason and policy; and in looking into the case, l am confirmed in that opinion. The cases of Sampson v. Hodson, 8 Mod. 302, and Jeanes v. Wilkins, 1 Ves. 195: and the reasoning to be deduced from them, set this case out of doubt, that Bolán was legally imprisoned. Sampson v. Hodson, 8 Mod. 302. The plaintiff having obtained judgment in debt against the defendant, sued out a fi. fa. and likewise a ca. sa. at the same time, and thereupon the delend ant was taken in execution. It was moved to quash the fi. fa. The court was of opinion, the plaintiff might for hrs own security take out two writs, but he can execute but one. 1 Ves. 195. During the existence of a ca. sa., and the person in custody, a fi. fa. ought not to be taken out; yet the fi. fa. not void, though it was set aside. So the motion to reverse the decision of the district court, must be supported.
Note. See 6 Mod. 286. 1 T. R. 228. Barnes, 213, 198. No second writ ought to issue, before the return of the first. 1 Sellon’s Prac 536. But if one writ proves ineffectual, another may be sued out; and if nothing be done ore the first, no necessity to recito the sheriff’s return in the second. 1 Salk. 218. Cro. Eliz. 344. Party cannot have the benefit of both remedies at oirco, but ha has an election. 3 Co. 11. 1 Str. 226.