
    
      Lathrop v. Lumpkin and Others.
    May, 1843,
    Richmond.
    (Absent Oabeijü, P.)
    Action on Sheriff’s Bond — Return—Amendment*— Evidence -Case at Bar —In debt on a sheriff's bond, twobreacb.es are assigned: 1. that the sheriff had levied an execution of the relator against an administrator, on slaves of the decedent, but negligently suffered them to be eloigned and carried off: 2. that the sheriff might have levied the execution on such slaves, but neglected so to do. At the trial, the plaintiff, to shew the issuing of the execution, and the reception and disposition thereof by the sheriff, was under the necessity of giving in evidence not only the execution with the return originally made thereon, but also an amendment of that return, made by leave of court. This amendment had been made not by obliterating the first return and substituting another in its place, but in a more proper manner by mating an addition to the first return; and the return thus constituted of that originally-made, and of what was afterwards added, was upon its face contradictory in itself. Hjiia, that the defendant had a right to rely upon said return as prim a facie evidence in his favour; that the plaintiff, on the other hand, was at liberty to disprove any part of it, as well by intrinsic evidence furnished by the return itself, as by evidence aliunde; that it was competent for the defendant in like manner to sustain any part of the return; and that it was the province of the jury to decide, upon the whole evidence furnished by the return or otherwise, whether or not the execution was levied by the sheriff upon the property of the intestate in the hands of the administrator, and the same thereafter eloigned and lost by the negligence of the sheriff; or whether or not the sherilf might have levied upon such property in the hands of the administrator, but neglected so to do.
    On a judgment obtained in the circuit court of King and Queen county, by Fay-ette Lathrop against William Gibson as administrator of John A. Longest, a writ of fieri facias issued the 6th of November 1834, returnable to the first monday in January following, upon which the sheriff of that county made the following return;
    “On the 10th day of December 1834, I found in possession of William H. Gib-50 son administrator of John A. x'Longest deceased two female slaves, (a woman named Sarah and one child) which slaves were the property of the said John A. Longest at the time of his death. And on the same day I levied this execution upon the said slaves, they being the only property I could find of John A. Longest deceased. At the time of making the levy, the said Gibson stated that he had sold those slaves to John M. Abraham of King William county, and produced the account of sales of said Longest’s property, shewing that the said slaves had been sold to said Abraham and were no longer the estate of John A Longest: that he had only hired them for the year. Under these circumstances, being doubtful of the propriety of removing them, 1 left them with Gibson upon his promise to keep them until I could get advice. I went the same day to the house of James Smith the attorney for the plaintiff, and informed him of the circumstances, and enquired of him whether I ought to take away the slaves or not: and said Smith advised me to take possession of the slaves. I then employed R. B. Bagby, who was present when I made the levy, to go to Gibson’s, take the slaves, and secure them to be sold to satisfy this execution. When Bagby arrived at the house of Gibson, the slaves had been carried off. Bagby wrote to me immediately, informing me he had failed to get the slaves. I directly made diligent search and enquiry, and soon ascertained that the slaves were in possession of said John M. Abraham; and I have been unable to get them. I went to see Abraham, and he said the slaves were his property; that he bought them several months before. John Lumpkin D. S. for Hugh Campbell.”
    Afterwards, by virtue of an order of the said court entered on the 4th of May 1837, the following amended return was made:
    “By leave of the court for that purpose first obtained, I hereby return, that the annexed execution came to my 51 *hands on the 11th day of November 1834, and while it was in my hands I heard it rumoured that two negroes, one woman named Sarah and a girl named --, which were the property of John A. Longest deceased in his lifetime, were still in the possession of William Gibson his administrator, and unsold by him. After hearing this, I, on the 10th day of December 1834, met the girl in the road near the house of the said Gibson. I carried her back to the said Gibson’s house, intending to investigate the matter, and if satisfied that the said negroes were still the property of John A. Longest’s estate, to levy upon the same to satisfy this execution. Upon reaching the house of the said Gibson, he assured me that he, as administrator of the said Longest, had actually sold the said negroes and received the money for them; and exhibited to me the account of sales of the perishable property of the said Longest, made by him as administrator, upon which account of sales I found these negroes entered as haying been sold to John M. Abraham. The account of sales, I thought, was kept in the handwriting of mr. Thomas Jordan. After this investigation, I did not feel satisfied to levy the execution upon the said negroes, but left them, without having levied upon them, in the possession of said Gibson, saying to him, that I would see mr. Smith, the plaintiff’s attorney, and if he thought that I ought to levy upon them, I would return and do so; and requesting him in the mean time to keep them until X returned, which he consented to do. Upon seeing mr. Smith, he advised me to take the ne-groes into possession. After that, I could never find them; nor could I find any property within my bailiwick upon which to levy this execution. John Lumpkin D. S. for Hugh Campbell.”
    On the 15th of December 1837, an action of debt was brought in the same court, in the name of the governor of the commonwealth, for the benefit of Fayette La-52 throp, 'x'against Francis Rowe, John Lumpkin, and others, on a bond executed the 10th of March 1834 by Rowe, and the other obligors as his sureties, with a condition for the faithful execution and performance by Rowe of the office of sheriff of King and Queen county, during his continuance therein. . ,
    The declaration, as amended, assigned two breaches. The first alleged, that at the time and after the execution of Lathrop was delivered to the sheriff, goods which were of the said John A. Longest at the time of his death, of great value, to wit, two female slaves (a woman called Sarah and one child) had come to the hands of the said William Gibson as administrator, and that John Lumpkin, as deputy for the said Francis Rowe, levied the said execution on the said slaves, but negligently and unlawfully suffered them to be eloigned and carried off. The second breach alleged, that when the execution was in the hands of the sheriff, there were in the hands of Gibson as administrator two female slaves, which were of the goods of Longest at the time of his death, upon which the said execution might have been levied, and that Lumpkin, though it was completely in his power to have levied said execution on said slaves, omitted and neglected so to do.
    Rowe died before the writ was served. The other defendants, upon whom process was served, pleaded, 1. conditions performed ; upon which issue was joined: and 2. that before and at the time when the execution came to the hands of Lumpkin as deputy for Rowe, Gibson the administrator of Longest had administered and converted all the goods which were of Longest at the time of his death, and which had at any.time come to his hands to be administered.
    At the trial, which took place the 5th of May 1842, the plaintiff gave in evidence the execution with the returns made thereon as before mentioned. And thereupon the counsel for the plaintiff moved the 53 court to instruct *the jury, that they should disregard the amended return of the sheriff, where the same was contradictory to the first; and that upon the amended return, though true, the plaintiff was also entitled to recover. The court refused to give these instructions, and on the contrary instructed the jury that the amended return of the sheriff, when contradictory to the first return, was to be respected, and to be regarded as prima facie true; and that upon the amended return, if true, the plaintiff was not entitled to recover; To which opinions the plaintiff excepted.
    Verdict and judgment being rendered for the defendants, on the petition of Lathrop a supersedeas was awarded. The petitioner assigned the following errors;
    “1. Your petitioner is advised that the instruction of the circuit court to the jury at the trial was erroneous, because, on the amended return, the law was for your petitioner. The return states that the property was Longest’s in his lifetime; that it remained in the hands of his administrator (the defendant) until the officer having your petitioner’s execution in his hands went to the defendant’s house, took one of the slaves in the road and carried her back, and left her and the other slave in the defendant’s possession, upon his promise to keep them there until the sheriff’s return, — went away, and suffered them to be eloigned. The execution bound the slaves from its delivery to the sheriff, if they were the property of the intestate. It was levied on them. Actual seizure was not necessary, if they were in the power and view of the officer. Bullitt’s ex’ors v. Winstons, 1 Munf. 269; Haggerty v. Wil-ber, 16 Johns. R. 287. But here was an actual-seizure. At least there might have been a levy, and it was misconduct in the sheriff if he did not make it. The slaves, as to your petitioner, were the property of the defendant’s intestate. The statement of the defendant that he had sold them, if true, imports nothing. His posses-54 sion of them after an '^absolute sale, unexplained, made the sale fraudulent and void as to creditors. Mason v. Bond & Co., 9 Leigh 181.
    ‘ ‘2. The direction by the court that the jury should regard the second return as true, where it conflicted with the first, was erroneous. The first return, made when no suit had been brought, or possibly was ever anticipated, and in the regular course of the sheriff’s duty, admits a clear liability on the part of the sheriff. The second was made after this suit was instituted, and is evidently cautiously worded, so as to defeat the liability flowing from the first. Now the amended return was liable to contradiction by evidence aliunde on the part of the plaintiff, and if both returns had been left to the jury for what they were worth, upon the whole evidence they might justly have inferred that the statements of the first return were, under the circumstances, more entitled to credit than those of the last, and were sufficient to contradict them. They had a right so to decide. But the court, in determining that the statements of the first return were insufficient for that purpose, and were worth less as evidence than those of the second, not only formed an erroneous conclusion on the matter of fact, but clearly invaded the province of the jury.
    “3. No issue was joined on one of the pleas. ”
    The cause was submitted without argument, by Daniel for the plaintiff in error, and Griswold for the defendant in error.
    
      
      Amendments.--On this subject, see generally, monographic note on “Amendments" appended to Snead v. Coleman, 7 Gratt. 300.
    
   BAIjDWIN, J.,

delivered the following as the opinion of the court:

The court is of opinion, that the amendment of the sheriff’s return having been made not by obliterating *the first and substituting another in its place, but in a more proper manner by making an addition to the first return, which original and amended returns are to be regarded as constituting but one return —the return so constituted is upon its face contradictory in itself: that the same was necessarily given in evidence on the part of the plaintiff, to shew the issuing of the fieri facias for the relator, and the reception and disposition thereof by the sheriff: that the defendant had a right to rely upon said return as prima facie evidence in his favour: that the plaintiff, on the other hand, was at liberty to disprove any part of it, as well by intrinsic evidence furnished by the return itself, as by evidence aliunde: that it was competent for the defendant, in like manner, to sustain any part of the return: and that it was the province of the jury to decide, upon the whole evidence furnished by the return or otherwise, whether or not the execution was levied by the sheriff upon the property of the intestate in the hands of the administrator, and the same thereafter eloigned and lost by the negligence of the sheriff; or whether or not the sheriff might have levied upon such property in the hands of the administrator, but neglected so to do. The court is therefore of opinion that the circuit court properly rejected the instructions asked for by the plaintiff, but ought not to have given the instructions substituted therefor. The judgment is therefore reversed with costs, and the cause remanded, with directions to set aside the verdict, to give the parties, on the application of either, leave to amend their pleadings and make up more correctly the issues contemplated by them, and to award a new trial, upon which the instructions given upon the former trial are not to be repeated.  