279 [15 Am. Dec. 519]; Amyett v. Backhouse, 3 Mur. 63; Ellar v. Ray, 2 Hawks, 568.

Gaston and Badger, for the plaintiff. The want of a seal did not invalidate the vend. ex.; if the sheriff chose to act under it, a purchaser was not affected by the want of form: 1 Archb. Pr. 193, 324; Gilb. Ev. 40; Bull. N. P. 234; Peake Ev. 50; Jackson v. Pratt, 10 Johns. 387; Cresson v. Stout, 17 Id. 116 [8 Am. Dec. 373]. A sheriff may sell land under a fi. fa., after its return, and without a vend. ex. The case of Barden v. McKinnie depends on its own peculiar circumstances, and is inconsistent with the cases of Wheaton v. Saxton, 4 Wheat. 503; Toomer v. Purkey, 1 Mill, 323 [12 Am. Dec. 634]; Tayloe v. Gaskins, 1 Dev. Law, 295. The plaintiff's title was good under the execution in favor of the defendants: Haywood v. Hildreth, 9 Mass. 393; Prescott v. Wright, 6 Id. 20.

HENDERSON, C. J. A writ issued to another county must be under the seal of the court from which it issues. Without a seal it confers no power on the sheriff; and his acting under it can not give it validity. This has heretofore been ruled in this court, in the case of The Governor v. McRae.' The act of 1797, Rev. c. 474, sec. 5, dispensing with the sealing of process in the cases mentioned in it, operates only in those cases. And it is a sufficient answer to say, that this is not one of them, and therefore must be governed by the general rule. But if that act bas any effect in this case, it is to show that a seal is here necessary. For if by the general rule it was not, why make the exception?

It is next contended, that the levy under the fieri facias issued from New Hanover county court, and returned to the succeeding session of that court, levied on the lot in dispute, gave the power to sell; and that although this case may be embraced by the reasoning of the court in delivering the opinion in the case of Barden v. McKinnie [15 Am. Dec. 519], yet the facts are very different. There the indorsement of the levy was not made till long after the return of the fi. fa., the sale was not made until more than two years after its return day; and in the mean time the defendant in the execution had died. Here, the levy was indorsed at the proper time, the sale made shortly after, and in the life-time of all the parties. It is admitted that the case referred to is a much stronger one than this. But the principle is the same, to wit, that a sale of lands under a fi. fa. is in virtue

1. 3 Hawks, 226.

of a power, and not of a property in the thing sold. The latter is the case, as regards goods. By the seizure, the sheriff acquires a qualified property in them, and may maintain an action founded on that right of property, qualified to be sure, but still it is a right of property. He stands charged to the plaintiff in the fi. fa. for their value; and the debtor is discharged to the same amount. It is in virtue of this property, that he makes the sale; and he needs not a venditioni exponas, to confer it. He had it before. A venditioni exponas only puts him in contempt for not selling.

But in regard to a levy on lands, it is far otherwise. The sheriff makes no seizure; is not liable for the value; the debtor is not discharged to that or any amount; the sheriff acquires no possession. He only sells the defendant's estate in the lands. He does not deliver possession to the purchaser as he does in the sale of goods, but only clothes him with the defendant's estate, and leaves him to acquire possession as he can. This shows very clearly that the sheriff sells by virtue of a power, and not by virtue of a property of any kind. When, therefore, that which gives the power is withdrawn, the power ceases. As a venditioni exponas can give no power to sell, it is argued that ex necessitate the power given by the fi. fa. must remain. The argument would prove much, were it true. For although it is admitted that a venditioni exponas confers no power to sell in the case of a chattel levied on under a fi. fa., because the power existed before, and therefore could not be conferred again, yet where the power did not exist before, that reason fails; and if not conferred by the venditioni exponas, it does not exist. The reason ex necessitate is therefore turned against the defendant. In these cases we have considered, and must consider, that a venditioni exponas, or order of sale, by whatever name it be called, changes its character from that which it bears where there has been a levy on goods. There it confers no power to sell, because the power existed before. But in the case of a levy on lands, it confers the power of sale, for the very contrary reason. Where goods are levied on under an attachment, and they are afterwards ordered to be sold; or where lands are levied on by a constable, and returned to court, and ordered to be sold, the order of sale, whether it be called simply by that name, or dignified with the name of venditioni exponas, is the writ which gives the sheriff power to sell. The very same reasoning is applicable to an order to the sheriff to proceed to sell land levied on by a fi. fa. which has been re

turned, and the power of acting under it thereby withdrawn or expired. So also where an heir is sued on his ancestor's bond, and he confesses and sets out assets, and the plaintiff accepts them, a venditioni exponas or order to sell them issues. And certainly in this case no power existed before, and independ ently of the writ.

As to the sheriff's having in his hands writs of fi. fa. against the same defendant, at the instance of the Cape Fear bank, that gave the sheriff no power to sell. For he was directed by the agent of the Cape Fear bank not to sell under them. And this order given by parol without withdrawing the writ, was good; at any rate, the sheriff obeyed the order and did not act under the writs. And this is not like a case where a person has various powers to do an act, and does it; a misrecital of the power afterwards, under which power he could not rightfully do it, will not vitiate the act. He did it under all; and if either was good, the act is effectual; and his misrecital shall not prejudice. He did not act nor profess to act under the bank executions. The directions of the agent were good without paying the fees; and especially if acquiesced in by the sheriff.

We can not examine into the grounds of the decisions in our sister states, for want of their laws in regard to these writs of fi. fa. There must be something in them to warrant the decisions, or we misunderstand the common law.

It is asked, if the sheriff made a levy on lands, and went out of office, is be to sell? I imagine not. Indeed I say not. And yet, if the plaintiff's argument is sound, he must. And if so, all sales made by succeeding sheriffs, where their predecessors had made a levy on lands, would be set aside. For they have uniformly been made by the successors, under writs of venditioni exponas.. Nor will the application of the surplus in the sheriff's hands (after applying what he chose to the venditioni exponas) to the bank executions, alter the case; that is, make it a sale under the bank executions. This is only matter of evidence, and is entirely contradicted by the full proof to the contrary. As this case is to go back for a new trial, I imagine that it is within the power of New Hanover county court to affix their seal to the venditioni exponas now, if it was omitted by mistake; that is, if it was intended, the venditioni exponas should be a genuine writ. I make this suggestion, that the parties may meet on equal terms at the next trial.

By COURT. Judgment reversed.

Cited to the following points: Every writ which is to be executed beyond the limits of the county in which it is issued, must be sealed: Freeman v. Lewis, 5 Ired. Law, 96; land does not, like goods, vest in the sheriff under a fi. fa., and therefore he can not sell land without a vend. ex.: Smith v. Spencer, 3 Id. 264; a sale of land by the sheriff, after a return of the fi. fa., and without a new writ, is made without authority, and passes no title: Tarkinton v. Alexander, 2 Dev. & B. Law, 92; Love v. Gates, 2 Ired. Law, 16; issuing a vend. ex. is the proper course after the return of a fi. fa.: Samuel v. Zachery, 4 Id. 379; amendment is a matter of course, as to the affixing of seals to executions, when they have been omitted by the negligence or ignorance of the clerk, and no third person claiming under one of the parties to the execution is affected thereby: Purcell v. McFarland, 1 Id. 35; the fact that an execution was not taken from the sheriff makes no difference, if he was directed not to sell under it, and did not, in fact, sell under it: Isler v. Colgrove, 75 N. C. 343.

In Thompson v. Chaveau, 18 Am. Dec. 246, it was decided that, in Louis. iana, a fi. fa. does not authorize a levy on real estate.

EQUITY CASES

IN THE

SUPREME COURT

OF

NORTH CAROLINA.

MCNAIR V. RAGLAND.

[2 DEVEREUX EQUITY, 42.]

PLAINTIFF MAY SUE OUT AS MANY EXECUTIONS AS HE CHOOSES on the same judgment; but if he executes them wrongfully or irregularly, it is at his peril.

IF A PLAINTIFF SUES OUT A FI. FA. AND A CA. SA., the latter can not be executed until the former is returned.

MOTION. Seaweli, Gaston, and Badger, for the plaintiff, at this term, moved for several writs of fi. fa. on the decree entered against the defendant at the last term (1 Dev. Eq. 516), directed to the sheriffs of several different counties. They suggested that the defendant removed his slaves from county to county, so as to prevent them from being seized. The counsel admitted that such practice had not been common in North Carolina, but contended that it was well settled in England: Tidd's Pr. 1032; Primrose v. Gibson, 16 E. C. L. 78; Miller v. Parnell, 1 Id. 414. Nash and Winston, for the defendant.

RUFFIN, J. A motion has been made in this case, for liberty to sue out two or more writs of fieri facias to different counties. Such a practice has not yet prevailed generally in this state; though in one part of it, I learn, that at one time it was common to return, in vacation, a writ to one county, and take out another for a different county. The convenience and utility of the practice are so apparent, that the court felt from the beginning no difficulty in granting the motion, but the want of a precedent. It is just and reasonable to give a creditor every facility for the security and collection of his debt; which is the