#### JOHN H. WHEELER vs. THOMAS BOUCHELLE’S, ADM’R.

If a ca.ni. and a fi. fa,, are both issued, and, after the Sheriff has levied the fa. and, while he has the property undisposed oí, he executes the ca. sa., the Court upon the application oí the debtor will set aside the ca. sa. and discharge him from custody.

But where a ca. sa. and a fi.'fa. were both issued at the same time, and the the latter was levied, and, while so levied, the Sheriff returned the ca. sa. “not found,” the bail cannot avail themselves of this in a plea to a sdre fal-das to subject them.

It is only an irregularity, and the bail cannot by plea take advantage of an irregularity in the process against the principal, as if the ca. sa. had been sued out more than a year and a day after the judgment.

The return of a Sheriff upon a ca. sa. “not found” is sutficient.

The case of McNair v. Ragland, 2 Dev. Eg, 42, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg county, at the Spring Term, 1845, his Honor Judge Bailey, presiding.

This is a scire facias against the administrator of Thomas Bouchelle, the bail of John E. Bouchelle.

Among other pleas the defendant pleaded, first, that no Ca-pias ad satisfaciendum had been duly sued out and returned, that the principal was not to be found in his proper conn-, ty; and, secondly, that at the same day the plaintiff sued out a fieri facias and Capias ad satisfaciendum on the said judgment, and afterwards caused the fi. fa. to be levied on certain land of the principal and the said levy to be returned thereon, and that at the same term he also caused the ca. sa. to be returned “ not found.”

On the trial it appeared, that, at August term 1841, the plaintiff" recovered judgment against John C. Bouchelle, and on the 8th day of October following he sued out a fi. fa. and a ca. sa. thereon, returnable to February term 1842, and delivered them to the Sheriff; that the Sheriff levied the fi. fa. on a piece of land belonging to the defendant, and returned the same on the fi. fa.; and that, after such levy, and while *585it was in force, he returned the ca. sa. at the same term, “ not found.” A venditioni exponas issued from February 1842, to sell the laud, on which the'Sheriff returned the sale, and that he had applied the price to executions having a prior lien. Then the present action was commenced.

The Court instructed the jury upon this evidence to find for the plaintiff. They did so; and from the judgment the defendant appealed.

Alexander, Boyden Sp Iredell for the plaintiff.

Osborne for the defendant.

Ruffin, C. J.

Although the evidence supported the second plea, yet, 'it is to be observed, that, if that plea was immaterial and' no bar in this case, there was no error in directing a verdict for the plaintiff, on that, as well as the other issue. For, as costs do not in this State go according to success on the several issues, but are given to him who has judgment in the action, it is manifest, that no injury can arise to the defendant by a verdict against him on an issue joined on his immaterial plea ; since, if the verdict were for him, the plaintiff would still be entitled to judgment, notwithstanding the verdict, for the debt and the same costs.

The point therefore is, whether the matter of the second plea is a bar in this case. With his Honor, we think that it is not. The plea admits, that the ca. sa. is in due form, and was duly sued out, according to the course of the Court. Indeed, there is no doubt, that the plaintiff might sue out a ji. fa. and a ca. sa. at the same time. McNair v. Ragland, 2 Dev. Eq. 42. The ca. sa. was, therefore, in itself, valid, and the fault was not in the writ, but in the subsequent proceedings on it by the party. If, after seizing property on a fi. fa. and while it remained in the Sheriff’s hands undisposed of, the debtor had been arrested on the ca. sa., it would have been irregular and improper; and, at the motion of the debt- or, the Court would have discharged him from custody and set aside the writ. Miller v. Parnell, 6 Taunt. 370. That would have exposed the creditor to the debtor’s action for *586imprisonment; and, enabled the bail, if sued, to plead trulv, that there was no ca. sa.. But, in the nature of things, . .... ’ a mere irregularity in the execution of process, which is valid jn ;tse]f; cannot render it void ; and, until it was set aside, the debtor could not have an action for his arrest. Perhaps, too, the Court might set aside the ca. sa. upon the motion of the bail. That, might in some degree depend on circumstances ; as if the bail had funds of the principal in his hands or other indemnity. But with that we have nothing to do at present; as here the matter is brought forward as a bar_ Now, the Statute, by requiring a ca. sa. to be sued out and returned non est inventus, necessarily gives the plea in bar, that there was no ca. sa.. But it does not make an irregularity in executing the ca. sa. also a bar, unless thereby the process is made void, so that the case may be treated as if none had ever issued. But that is not the case; for bail cannot thus take advantage of an irregularity, as if a ca. sa. be sued out after a year and day. Cholmondeley v. Bealing, 1 Lord Raymond 109. Suppose the writ in this .case had been served on the debtor, and that he had not moved for his discharge, but was imprisoned on it: very clearly, that would have been a discharge of the bail. That shows the writ was not void; and as the bail might derive the benefit of the'writ, as a ca. sa., so he must be charged by it, while it remains in force.

It is then objected, that the return of the ca. sa. is defective, because the act says the execution must be first returned, that the defendant is not to be found” — whereas this return is, “not found.” But the act does not profess to prescribe a‘ return in hoec verba, but only the nature and substance of it, namely, one of non est inventus, and there is no difference between “ not to be found” and “ not found” in this view.

Per Curiam, Judgment affirmed.