President, Directors & Co. of the Bank of Cape Fear v. Williamson, 24 N.C. 147, 2 Ired. 147 (1841)

Dec. 1841 · Supreme Court of North Carolina

24 N.C. 147, 2 Ired. 147

THE PRESIDENT, DIRECTORS & COMPANY OF THE BANK OF CAPE FEAR vs. JOSHUA WILLIAMSON.

An amendment of an execution will not be allowed, when such amendment will prejudice the rights of third persons.

This was an appeal from the judgment of the Superior Court of Law of New Hanover county, at Fall Term, 1841, his Honor Judge Pearson pr«sidinffi^>w=Aííhs4Íe«tío amend an execution had been made in iSp^rfwNew Hanover, and came up by appeal w the Superior jpourt, where the following, in substan1 case agreed: The President, Directors and Company of the|Bank of Cape Fear, at September Term, County Court obtained a judgment a^dnst JamesBtyjfiey and others, for $4261 60 cts. with in terestpf'JtferfT'facias thereupon regularly issued, tested at September Term, 1839, and duly came to the hands of the defendant, who was Sheriff of the county of Columbus. Upon this execution the Sheriff returned that by the sale of various articles of property he had satisfied the sum of $3577 10 cents, besides the costs and commissions. Afterwards the plaintiff sued out another execution tested at December Term, 1839, and returnable to March Term, 1840, which duly came to the hands of the defendant as Sheriff aforesaid. This execution did not profess on its face to be an “ alias,” but on the back was the following endorsement by the clerk: “ $3577 10 paid.” On this execution the Sheriff returned “no property to be found.” At Fall Term, 1839, of Cumberland Superior Court, one obtained a judgment against the said Burney & others, for $ . A. fieri facias thereupon regularly issued, tested at November Term, 1839, of Cumberland Superior Court, and duly came to the hands of the defendant as Sheriff of Columbus. The motion was to amend the plaintiff’s execution tested at December Term, 1839, by inserting the words “ as we have heretofore done” tor the pur-p0se 0f making-it relate bapk, as an alias, to the execution plaintiffs tested at September Term, 1839.

Notice of this motion had been given to Williamson, the Sheriff, but none to the plaintiff in the execution issued from Cumberland Superior Court, nor to the defendants in the present execution.

Th.e Court, refused to allow the amendment, and discharged the rule; because the amendment, if it had any effe.ct, would prejudice the interest of the plaintiff in the execution from Cumberland, and not upon the ground that the question of amendment was a mere matter of discretiop. From this judgment the plaintiffs appealed to the Supreme Court.

William H. Haywood Jr. for plaintiffs.

Strange, for defendant,

to shew that such an amendment will not be allowed, when it affects the rights of third persons, cited Frew v Cowan, 1 Dev. 304. Inman v Haste, 5 Bos. & Pul. 133. Hunt v Pasman, 4 Maulé & Sel. 329. Phillips v Tanner, 19 Eng. C. L. Rep. 66. Johnson v Bobbell, 17 Eng. Com. L. R. 163. Parris v Wilkinson, 8 T. R. 153. Purcell v McFarlane, 1 Ired. Rep. 34. Clark y Relien, 1 Ired. Rep. 421, Bender v Askew, 3 Dev. 149.

Daniel. J.

Without stopping to remark upon the n.ov-.eityof a motion to amend, without the defendants in the execution having anynotice of it, we will say that in our opinion, the decision of the Judge was correct, in refusing the motion and discharging the rule — and, that too, for the reasons given by him. In 4 Maule & Sel. 328, the Court refused to allow an amendment of a fieri facias, when $he defendant had become a bankrupt before the sale of the goods taken in execution under the writ, because the amendment would prejudice the rights of third persons, namely, the assignee and the other creditors. See also 2 Arch, Prac. K. B. 279. When third persons are not thereby affected, a writ of execution may be amended from a day certain to a general return day; but if it will affect the rights of third persons, tire amendment cannot be made. 1 Marshall’s Rep. 399. 5 East 291. The authorities are with the decision of the Judge, and the judgment must be affirmed.

Per Curiam. Judgment affirmed