Fish v. Wiseman , 1 N.C. 192 ( 1793 )

Hyde, C. J.

It is like the case where one recovers on a simple contract. If after, the judgment is reversed, he may sue again on the contract; though the action did not lie, while the judgment was in force.

Richardson.

The same distinction was taken in 2 E. 4. 16. in a case of mainprize. In the first, execution lies against the securities. But in the last no execution can be against them.

Doderidge, J.

Dyer 60. One taken in execution is discharged by priviledge of Parliament: when they rise, he may be taken again.

2. This was an al. capias where there was no capias before: but to this no answer was given.

3. The capias was in another county, and the judgment was in London.

4. He was taken on a capias, after the year, and in another court.

The court agreed to the resolutions in Garnon’s case, 5 Rep. 88. The Common Bench cannot award a capias after the year, and the clerks said that the precedents were e contra; that he may be taken without a scire facias.

Banks moved that there was error, and the court ought to supercede the capias, as in 35 H. 6. 45. Supersedeas quia et ronice et improvide. Marget and Harvey. Action on the case in an inferior court, the first process was a capias and therefore the judgment was reversed. T. 2 Car. rot. 1478. Palm. 447. 445. Godb. 371.