Wake County, NC - Brasfield v. Whitaker, 1826

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              North Carolina Supreme Court
                  Brasfield v. Whitaker
                        From Wake

The lien created by an execution is continued by an alias regularly 
issuing thereon; and if exception, at the instance of another 
plaintiff, issue after the lien of the first commenced, and before 
execution is fully done under it, the alias come to the sheriff’s 
hands, it shall have the preference.

This was a case agreed as follows: the plaintiff, David Brasfield, at 
the November sessions, 1820, of Wake County Court, obtained a judgment 
against one Mark Cooke, for $390  34, with interest, &c., and costs. 
Upon this judgment, the plaintiff sued out a writ of  fi. fa. 
returnable to February term of Wake County Court, 1821, directed to the 
sheriff of Wake, which in due time came to the hands of the defendant, 
then sheriff of the said county, and which was returned by him 
endorsed, “nothing to be found.”

Plaintiff then sued out an alias  fi. fa. returnable to the May 
Sessions of the same year, which came to the defendant’s hands on the 
6th of March, 1821, and was returned, “nothing to be found.”

At February Sessions, 1821, of Wake County Court, Hutchins G. Burton 
recovered a judgment against Mark Cooke for $2512  99, on which a  fi. 
fa. issued, returnable to May Sessions, 1821, which came to the 
defendant’s hands on the 1st of March, 1821. On the same day, the 
defendant levied on a lot and improvements in Raleigh, belonging to 
Mark Cooke, and afterwards, on the 27th of April, in the same year, sold 
the same as sheriff, for $1,100, and applied the purchase money to 
Burton’s execution.

 The case as above stated, was submitted to Paxton, Judge, who gave 
judgment for the plaintiff for the whole amount of his debt, interest 
and costs. Whereupon the defendant appealed.

Badger & Hawks, for appellant.
Haywood, for appelle.

Hall, Judge, delivered the opinion of the court: Brasfield’s execution 
was a lien on Cooke’s property, and that lien was continued by the 
alias execution which issued regularly after it. Burton’s execution 
issued after this lien commenced, and execution was not done fully 
under it, before Brasfield’s alias execution came to the hands of the 
sheriff. 

Brasfield’s execution had the preference, and should have been first 
settled.

Judgment affirmed.

Source: North Carolina Reports - June Term, 1826

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This file was contributed for use in the USGenWeb Archives by
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