
    No. 91.
    George W. Rogers, plaintiff in error, vs. McDill & Campbell, defendants in error.
    
      
      Land cannot be levied on and sold under an order of the Magistrates, in attachments returnable to Justice’s Courts. It must ho by virtue el’an execution issuing upon the judgment in attachment.
    Claim, in Forsyth Superior Court. Tried before Judge John H. Lumpkin, February Term, 1845.
    The record in this case disclosed the following facts : Sundry attachments had been issued from a Justice’s Court in Forsyth County, against one Seaborn Corderey, in favor of different creditors. The Justice’s Court had given judgment thereon, and passed an order that the property attached, which consisted both of land and personalty, should be sold to satisfy the attachments. The personal property was sold accordingly; the land was claimed by Rogers, the plaintiff in error, and the claim was returned to the Superior Court, together with all the attachments levied.
    In the Superior Court, the attaching- creditors agreed with the claimant, that the result of one of the cases in favor of one Shelton, should control them all. The case of Shelton was tried, and the Jury found for the claimant. Shelton did not appeal, but McDill and Campbell, the defendants in error, who had entered into the agreement aforesaid, entered an appeal on the minutes, in their case, in which there had been no verdict nor confession. On the trial of the appeal, claimant moved to dismiss the apjieal, «because it had not been entered within four days, as required by law, although the appeal on the minutes bore date within the time, and offered to introduce the Clerk to prove that the appeal bond had not really been signed on the day when it bore date, but several days thereafter. The evidence was rejected by the Court, and the motion overruled, on the ground that the appeal and bond were of record and could not be contradicted by parol. Plaintiffs then moved to dismiss the claim, because it had been interposed after judgment on the attachment, and after the order of the Justice’s Court had been passed, directing the property to be sold. Before this motion was determined, claimant moved to suspend the same, and allow him to move again to dismiss the. appeal, on the ground that there had been no verdict or confession to be appealed from. The Court refused the motion- of claimant and'granted the motion of the .plaintiff in fi.fa. dismissing the claim.
    To -which decisions' claimant excepted.
    No one appearing for defendant in error, the plaintiff was allowed to proceed ex paiie.
    
    Akin, Lewis & Martin, for plaintiff in error.
   By the Court.

Lumpkin, J.

delivering the opinion.

Upon examining this record, we find it unnecessary to decide any of the questions made in the bill of exceptions.

There is no authority of law to sell land by an order of the Magistrates, under attachment returnablelo Justice’s Courts. It can only be done under an execution, issuing upon the judgment in attachment. Prince, 503 — ’4. The levies, therefore, in this case, are illegal, having been made by virtue of a void process. Should the property be condemned and sold, the title would not be divested, and the purchaser would take nothing. It is useless for the litigation to continue; and with this view of the subject, we shall remand the cause, with instruction to dismiss the levies. The parties plaintiff must proceed, de novo, in the primary Court.

Whether a claim can be interposed in attachment, after judgment has been rendered, or the property ordered to sale, we will postpone for future investigation.

Judgment reversed.  