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

Upon cause being shown, the facts were that the writ came to the hands of the sheriff on 4 October, 1810, who levied it upon sundry negroes, but neglected to indorse a return (305) 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 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 was pending 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 be made, as evidence of that action.

His Honor, Judge Strange, made the rule absolute, whereupon the defendant appealed. 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 the record as it originally stood. This seems to be 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 (306) to affect the title of James Cowan to the same property, acquired in 1821, under Ann Cowan. 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; it must, therefore, be dismissed, but the appellant is not bound to pay costs to the appellee.

PER CURIAM. Appeal dismissed, each party to pay his own costs.

Approved: Williams v. Sharpe, 70 N.C. 582; Williams v. Weaver,101 N.C. 1.