
    
      Joseph Douglass vs. S. H. Owens.
    
    A ca. sa. may issue as a renewal of a fi. fa.; or both may issue at the same time.
    It will not be presumed that a previous ji.fa. was not delivered to the clerk, as required by the Act of 1839, before a renewal execution issued, because the fi. fa. cannot be found in the clerk’s office and there is no entry of renewal in the abstract book: on the contrary, it will be presumed that the clerk did his duty.
    Deelaration on bail bond alleged, that the writ, against the principal, was sued out of the Court for Fairfield: the writ was returnable to the Court for Fairfield and all the proceedings were in that Court, but the writ was signed and tested by the clerk for Richland: Held, that there was no variance sufficient to authorize a nonsuit.
    
      Before Fuost, J. at Fairfield, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was a new trial of an action of debt on a bail bond. The evidence reported on the first trial was read ; and upon that, without argument, the jury found a verdict for the plaintiff
    “ The plaintiff had sued one Thompson, and the defendant was one of Thompson’s bail. By the writ, the sheriffs were required to take and have the body of Thompson at the Court to be holden for the district of Fairfield, and to return the writ to the clerk of that Court. It was signed and tested by the clerk of the Court for the district of Richland. Judgment was entered in this suit in Fairfield district, the 16th April, 1844; fi. fa. lodged the 25 th April, ’44, and a ca. sa. the 23d October, 1847.
    “ The clerk of the Court proved that there was no return of thefi.fa. in the abstract of judgments.
    “ The declaration alleged that the plaintiff had ‘ sued and prosecuted out of the Court of Common Pleas of the State of South Carolina for the district of Fairfield, a certain writ of debt against John B. Thompson,’ &c.
    “ The Act of 1839 requires the clerk of the Court to enter the returns on writs of execution in the abstract of judgments ; and directs that the clerk shall not issue a new execution ‘ until the former writ shall have been delivered to him.’
    “ A motion was made for a nonsuit, on the ground, that the ca. sa. had been issued without a previous return of the fi. fa. It was ruled that the issue of the ca. sa. was evidence of the delivery of the previous fi. fa., without which delivery he could not lawfully issue the ca. sa. And that this evidence was not rebutted by the fact that no return of the fi. fa. was entered in the abstract of judgments. It might be a mere neglect of the clerk that no return was entered. It would be misfeasance for the clerk to issue a second execution without a previous delivery to him of the first. The Act requires only a delivery of the first writ to the clerk before he issues a second. Nothing may have been done on the said writ to be returned. It may have been lodged with a stay of proceeding. A ca. sa. and fi.fa. may be taken out at the same time, and either of them executed, at the option of the plaintiff. Therefore, no return of a prior ji. fa. is necessary to warrant the clerk to issue a ca. sa., even if a return of the first fi. fa. is necessary to the suing out of a second.
    “ Another ground for nonsuit was the alleged variance between the description of the writ in the declaration and that produced. It was ruled that there was no variance. The clerk of the Court of one district may test a writ returnable to another. A writ is properly described as sued out of the Court for the district to which it is returnable, and in which it is prosecuted to judgment. It is not necessary to allege the test of the writ, because it is immaterial by what clerk it may be signed. F.or the purpose of signing a writ, the clerk of the Court of Richland is clerk of the Court of Fairfield district.
    “ The motion for nonsuit was refused.”
    The defendant appealed, and now renewed his motion for a nonsuit, on the grounds:
    1. Because no return of the fi.fa. to the clerk prior to the issuing of the ca. sa. was proved.
    
      2. Because there was a difference in the allegation and proof. The allegation being bail writ, issuing from Fairfield, whereas writ produced was issued from Richland district, and signed by the-clerk of the said last named district.
    
      Boyce, McCants, for the motion.
    
      Gregg, contra.
   The opinion of the Court was delivered by

Whitner, J.

The questions in this case lie within a very narrow compass.

That a ca. sa. may issue as a renewal of a fi.fa. is well settled : Robertson and Gilfillan vs. Shannon, (2 Strob. 434,) and earlier authorities there cited.

That the plaintiff may takeout both a fi.fa. and ca. sa. at the same time, or, having taken out one, may still have a right to the other, on proper return, is equally clear.

That the ca. sa. in question was issued within the period of renewability, is also undeniable.

But the A. A. of 1839, section 19, (11 Stat. 76,) provides that it shall not be lawful for any clerk to affix the seal of the Court to any renewed execution, unless the one previously issued shall have been delivered to him, or unless authorized by a Judge’s order.”

The ft. fa. in this case was not produced, and the Abstract Book” of the clerk contained no entry of “renewal or satisfaction.” From the omission of the clerk to make the entry, and in the absence of proof of return or delivery, the argument is, that the clerk shall be presumed to have violated the law in renewing the execution. But the maxim, omnia prcesumuntur rite esse acta, is of universal application and leads to a different conclusion. All persons are presumed to have duly discharged any duty imposed by law. Thus the judgment of Courts of competent jurisdiction are presumed to be well founded and their records to be correctly made. Judges and jurors are presumed to do nothing carelessly or maliciously; and public officers are presumed to do their duty. (Best on Presump. 68 et seq.) The production of the ca. sa., issued within the time, in the absence of other proof, would well authorize the presumption, for all the purposes of this case, that it was regularly done.

The remaining ground, for difference in the allegation and proof es to the original writ, seems clear of all difficulty. The views of the presiding Judge quite sufficiently vindicate the judgment of the Court. It may be added, however, that the allegation would have been sufficient if the words, for the district of Fairfield,” had been omitted; and perhaps no violence would be done to reject them as surplusage.

The motion for nonsuit is refused.

O’Neall, Evans, Wardlaw, Frost and Withers, JJ. concurred.

Motion refused.  