Gilky v. Dickerson, 9 N.C. 341, 2 Hawks 341 (1823)

June 1823 · Supreme Court of North Carolina

9 N.C. 341, 2 Hawks 341

Gilky v. Dickerson.

From Rutherford.

Ji‘ins Court will grant a new trial, because the facts, as stated, arc very imperfectly set foiji.

When an execution is issued, it creates a Hen upon the slaves of Defendant from the teste, so that he himself cannot dispose of them. When an alias Ji. fa. is issued, this lien has relation to the teste of the first,/?. fa.

If an execution be levied on slaves, but no return made, the benefit of rhis levv is lost, but the lien continues, as much as if the levy had not been made.

This was an action of trespass, for taking away two negroes, brought against the Defendant, who was coroner of the county of Rutherford,,

The evidence on the part of the Plaintiff was, that he purchased the negroes of one Alley, on the 19th of Sep-Umber, 1820, for a valuable consideration and bona fide; that he took them into possession, and afterwards, on tiie 7th of October, 1820, the Defendant levied on, and sold them, by virtue of an execution issuing from September, 1820, returnable to March, 1821, at the instance of the State Bank, against Alley and one Elliott.

The Defendant proved that the Bank, in March, 1820, obtained a judgment against Alley and Elliott, for the sum of $2130; that an execution issued “thereon, and came to the hands of the Defendant, (Alley being Sheriff of the County,) which was tested, March, 1820; that one-half of the judgment was paid by Elliott; and about • the time of harvest, the Defendant went to Alley’s house to get satisfaction of the balance of the execution, when Alley gave him a list of these negroes and some other ■property, sufficient to satisfy the claim ; which property the Defendant loft in Alley’s possession, and afterwards said, he had levied thereon. The execution was returned by the Defendant, to September Term, 1820, when the Clerk barely altered the teste, and issued the same writ as an alias, from September, 1820, returnable to the next Court. Under this, the Defendant, on the 7th of October, 1820, sold the negroes. In September, 1820, ..Alley carried off the property to Tennessee.

Hall, Judge.

I think a new trial ought to be granted in this case, because the facts seem to me to be very imperfectly set forth. I cannot see upon what ground a verdict lias been rendered against the Defendant. It seems he levied upon the property in dispute about harvest time; but this was before the sale by Alley to the Plaintiff — that he afterwards, under an alias ji. fa. levied upon, and sold the property, on the seventh of October — ■ that Alley carried the-property away sometime in September, It does not appear that the property was eve» in tlio possession of the Defendant, if that was the caso, J. cannot see on what ground a verdict and judg-merit could be rendered against him — But suppose that ihe Defendant had levied upon, and taken the property into his possession in September, under the alias f.fa, before Alley carried it away, I cannot see that ho is liable for that, although the Plaintiff’s bill of sale was executed before that time ; because the first Ji. fa. that issued from March, created a lien on the Defendant’s pro - perty, so that he himself could not dispose of it, and that lien was continued under the alias ji. fa. ami existed when the slaves in question were sold to the Plaintiff in September. It is true, that although he had levied upon them under the first ji.fa. yet, as ¡se had not made a return thereof, and taken out a venditioni exponas, the benefit of tiiat levy was lost; but still the lien continued as much as if that levy had not been made, so as that the Defendant could not dispose of the property. For all these reasons, i think a new trial ought to be granted.

Taylor, Chief-Justice, and IJisNinsase:.-, Judge, concurred.