Cumpston v. Field

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*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 *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.