
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1805.
    Alkin v. Bolan.
    After the return o'f milla bona to a fi. fa., before the return day of the writ, made by the Bheriff at the request of the plaintiff the plaintiff ■shall be intitled to sue out a ca. sa. returnable at the return day of the fi.fa.; but the defendant shall not be responsible for the costs of the first execution.
    Motion to reverse an order of the district court of Richland, per Bay, J. Plaintiff had sued out a ji. fa. against the defendant, re. turnable fifteen days before the court then next to be holden, viz. in November, 1803. In a short time after, viz. in June, 1803, the sheriff1, at the request of the plaintiff, returned the said writ “nulla bona” Whereupon the plaintiff immediately sued out a ca. sa. against the defendant, by virtue of which he was arrested and con. fined. The defendant being afterwards brought up before the district court, moved to quash the writ of ca, sa., and to be discharged out of the sheriff’s custody ; which Bay, J. ordered accordingly, on the ground that the second writ of execution was illegally issued, being prior to the return day of the first, and the sheriff could not return the fi. fa. until the day on which it was returnable.
    The motion was argued in November, 1804, before Grimice* Waties, Trezevant, and Brevard, Justices, and stood over for further consideration at the request ot Waties, J., who wished to take the opinion of the practitioners in Charleston. In April, 1805, the case was not reargued, but stood over on account of the ab. sence of Trezevant, J., who was sick, and unable to attend.
    Egan, in support of the motion,
    cited Hoi’s case, 5 Co. 90. I Str. 226.
    Starke, contra,
    cite.d 1 Com. Dig.
   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 Pra'c 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.  