By the Court.
McDonald, J.delivering the opinion.
[1.] The first assignment of error is on the charge of the Court to the jury, that the Clerk, who was defendant in this case, could not have legally issued a ca. sa. against the body of the defendant, until the writ of fi.fa. which had heen issued against his property, was returned to office. This chargé is unquestionably correct. In case one execution prove in-’ effectual, another may be sued out; but there ought not to be two executions, one against the body and another against the property, at the same time. If a fieri facias has been issu*376;ed, and the party wish a ca. sa., the Sheriff ought to return ib.eji.fa. 1. Sellon’sPr. 535. Our statute directs that if a ca. sa. has been issued against a defendant, he may point out property and give security that it is bona fide his, and subject to the payment of the debt, and it shah thenbe the duty of the Sheriff to return the execution against the body and take out an execution against the property of the defendant. This is a legislative construction that there cannot be two executions, one against the body and another against the property, proceeding form the same debt against the same defendant, at the same time. We think the charge of the Court was strictly legal on this point.
[2.] The charge of the Court on. the subject of damages, must be considered in reference to the pleadings and the evidence in the case. It would not have been proper for the Court to have charged the jury on a state of things neither alleged nor proved. The fi. fa. was issued on the-fifth of October, 1853. It was made returnable to the next Court to sit on the second Monday in March, 1854. -.An entry ,of nulla bona is indorsed on the fi. fa., bearing date on the 25th of November, 1853, but it does not appear when it was .returned. There is no allegation of its return in the declaration. Before the first Tuesday in March, 1854, the defendant, Rutan, ranaway, and it was a few days before that, that the plaintiff, Ambrose, asked the Clerk to issue a ca. sa. When a plaintiff sues an officer for, a breach of duty, it is necessary for him to prove every fact necessary to constitute that breach of .duty. There was no proof of the return of the fi. fa., and the law will not presume its return prior to the Term of the Court to which it was.made returnable. From the facts ¡proven, there was no breach-of duty, and without a breach of .duty by the officer, damages, will not be presumed. If the plaintiff had sustained actual damages by the defendant’s failure to issue,the ca. sa., it is his own fault. The Sheriff was;not bound, without demand, to return the execution before the return Term; the Clerk could not have issued the ca. *377sa. before its return;, but the plaintiff might have required the Sheriff to return the fi.fa. to the office for the purpose of obtaining a cct. sa. This he did not do.
It is not necessary to consider whether this plaintiff could have a right of action in this case, even if the fi.fa. had been returned and the Clerk had refused to issue the ca. sa. on demand. He was a security, and if he had paid the debt and taken the control of the execution at the time the ca. sa. was applied for, he could have controlled the judgment and execution against the property only of his principal.
From what we have said, it will be seen that the motion for the new trial ought not to have prevailed.
Judgment affirmed.