Ballard v. Averitt
Superior Court of North Carolina
CjC/. fa. to shew cause why the plaintiff should not have execir» ^ tion against him opon a judgment formerly recovered in this court; to this sci.fa. the defendant pleaded that be had been, heretofore arrested by virtue of a capias ad satisfaciendum issued upon that judgment. The plaintiff demurred, and the defendant joined in demurrer: after argument by Jocelyn for the plaintiff, and Moore for th® defendant:
1Per curiam
If the defendant were arrested and discharged by the plaintiff’s consent, the plaintiff cannot now have a new execution against him ; if he were arrested and escaped by thn neglect or permission of the sheriff, the plaintiff may have a new execution against him, though in the latter case the sheriff could not arrest him and hold him in custody upon the old writ; or if he had died in execution, the plaintiff might now have a new execution. The fact as stated at the bar is, that he was arrested and discharged by the sheriff, there being no gaol in the county t.) confine him in; this is not put…
2Cases cited1 opinion
- Hector v. StateSupreme Court of Missouri · 1829