
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1805.
    M’Cullough v. Tidwell.
    A sheriff sold lands of an intestate under an execution against his administrator, which execution did not state that it was a sum due by the intestate, nor in what manner the sum in the execution required to be raised, was to be levied: It w >s held that ¡.his execution did not warrant the sheriff in making the sale, although it appeared frpm the prof ceedings against the administrator, that the cause of action accrued against the intestate, but the judgment was not against him.
    Motion to set aside a nonsuit. Trespass to try titles to land, tried before Wilds, J. in Fairfield district. Plaintiff claimed under a sheriff’s conveyance, made pursuant to a sale under execution. To support the sale, and conveyance, a record of a judicial proceeding was produced, in a suit between the executors of Aaron Loocock, plaintiffs, and the administrator of Solier de Beaufort, defendant; by which it appeared, that the proceedings were carried on against Ramsay, the defendant, as administrator of De Beaufort, to judgment ; but the judgment was entered up against him, without mention of his being administrator, and without specifying in what manner the damages recovered should be levied. Upon this evidence, which Wilds, J. thought insufficient to support the execution against the property of De Beaufort’s estate, the plaintiff was non* suited, and had leave to move in this court to set the same aside.
    And now, Smith and Evans, for the plaintiff,
    contended, that the court, should have considered the judgment as sufficient to warrant the execution-against the estate of De Beaufort, and that theomis. sion therein, was a clerical omission, which ought to bf supplied by intendment; but, at any rate, that the court would allow the judgment to Vie amended, as was done in the case of D’Urphy v. Nelson, in this court. And especially, as the judgment immediately supporting the execution and sale, is by sci. fa. upon the former judgment, which shews, that the judgment intended to be revived, was to operate against the effects of the intestate, and not against the proper goods or estate of the administrator.
    Blanding, on the other side.
    The original judgment was not authorized; because, it is a judgment against. Ramsay, in his own right, and not against him in his representative character, which the previous proceedings do not warrant. The judgment was, therefore, void from the beginning; and the proceedings by 
      sci. fa. cannot cure the defect: and, in the case of D’Urphy V. Nelson, the objection was not taken at the trial, but was raised" afterwards, on (he motion for a new trial,
   By the court.

(Grimke, Waties, Bay, and Brevard, Jus. bees.)

The nonsuit was properly suffered, and there is no sufficient reason for setting it aside. The judgment produced in evidence, does not warrant the execution issued thereon. Thu district court should have been applied to before the trial, to amend the judgment, to make it pursuant to. the other proceedings in the cause. In the case of D’Urphy v Nelson, no objection was made to the judgment, on this ground, at the trial. It was, indeed, insisted on in the argument for a new trial; but, it was then discretionary with the court to overrule it; aud, it was accordingly overruled; and the court recommended an admendment of the judgment, Which is also recommended in this case.

Motion refused.  