Davidson v. Cowan, 12 N.C. 304, 1 Dev. 304 (1827)

Dec. 1827 · Supreme Court of North Carolina

12 N.C. 304, 1 Dev. 304

William Davidson, adm’r. of Archibald Frew, v. James Cowan,

From Mecklenburg.

A sheriff should not be permitted to amend his return, to the injury of strangers to the record, and this especially after the lapse of sixteen years.

But when on a rule obtained, he was directed to amend, held, that the opposite party could not appeal from the order.

The Plaintiff, on (lie Spring Circuit of 1827, obtained a rule upon the Defendant to show cause why a former Sheriff of Mecklenburg should not amend his return toa writ of Fieri facias against one David Cowan, which issued on the. 21st of June,. 1810, and was returnable to the ensuing term of the Superior Court for that county.

Upon cause being shewn, the facts were, that the writ came to the hands of the Sheriff on the 4th of October, 1810, who levied it upon sundry negroes, but neglected to endorse a re turn of the levy. Before the next term of the Court, the Defendant in the execution died, an alias fieri facias issued, the teste of which overreached the time of his death. Under this writ, the negroes were sold by the Sheriff, and the Plaintiff’s intestate became the purchaser. In the year 1821, the same negroes came to the possession of the Defendant in the rule, who claimed under the widow of David Cowan.

An action'of Detinue w as ¡lending between the parties to the rule, in which the Plaintiff sought to„ recover the negroes of the Defendant — and the object in obtaining the rule was, to enable the present Plaintiff to use the return, now sought to he made, as evidence in that action-

His honor Judge Strawgh, made the rule absolute ; whereupon the Defendant appealed.

Gaston, for the Appellant, contended,

tiiat it was inconvenient and dangerous to alter a record sixteen years after it bad been perfected. (Potter e. Briggs, 1 Cain’s Jiep. 57.) That the alteration might be prejudicial to the parties to the record, between whom it is evidence* CGifford i-. Woodgale, 11 Bast. 296 — Sturkie, 4 part. 1044.)

Wilson, contra.

Hax.1i, Judge.

I think the proceeding in the Superior Court was irregular, because an alteration was suffered to be made in a record, at the instance of one who was not a party to it, and whose right might be affected by it. Besides, the alteration, at this distance of time, may injure the rights of third persons, held under thev record, as it originally stood. This seems to he the object now in view for as the negroes were not levied upon, as appears by the Sheriff’s return, under the execution which issued in 1810, but were sold under that which issued in 1811, after the death of David Cowan, it is intended by the proposed alteration, to validate that sale, and of course, to affect the title of James Cowan,. to the same property, acquired in 1821, under Ann Cow-an. Be this as it may, I think the Court erred, in permitting the alteration to be made. This case, however, is similar to that of Carter v. Graves, (ante 74) and the appeal cannot be considered as taken from a regular proceeding in the Court below j it must therefore, be dismissed, but the Appellant is not bound to pay costs to the Appellee.

Pee Curiam. — Appeal dismissed, each party to pay his own costs.