
    Richard M. Moore et al. vs. James Chambers et al.
    
    A sheriff returned on an execution of fieri facias that he had levied on a slave as the property of the defendant; that the wife of the defendant had made claim to the property, and executed a bond to try the right according to law, and he had thereupon delivered the slave to the wife; it was held, in a motion against the sheriff predicated on this state of facts, for a voluntary and an authorized omission to levy the execution, that the motion could not prevail ; that whether the wife had power to execute the bond and try the right at law or not, the proceeding was at most only voidable ; the sheriff’s right to proceed was thereby stayed, and the sheriff could justify under it.
    Whether, by the statutes of this state, a married woman is so far clothed with a sole character as to enable her to assert her right to slaves levied on under execution against her husband, by a trial of the right of property at law or not, yet it seems a sheriff, when such a claim is made, and bond properly tendered, cannot disregard it; but must stay all further proceedings.
    Lv error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge.
    James Chambers and William Bowman entered a motion against Richard M. Moore, and others, his sureties, for having previously to the return day of an execution in their favor, against Benjamin W. Thompson, on a judgment rendered on the 14th of October, 1846, for $328-89, and $15-37 costs, to wit, the 5th of April, 1847, voluntarily and without authority omitted to make the money specified in the writ, as appeared by his return in these words, viz: “ Executed this writ according to law, by levying on a negro man, a slave named Dick, claimed as the property of Benjamin W. Thompson, Feb. 25, 1847. R. M. Moore, sheriff, by E. Conklin, dep. sheriff. The within named negro slave Dick, levied on as the property of defendant, Benjamin W. Thompson, is claimed by Caroline M. Thompson, wife of said Benjamin W. Thompson, and bond taken for trial of the right thereof, with B. W. Thompson and James S. Mason as her security thereon, and the said slave delivered to her, March 17, 1847. R. M. Moore, sheriff.”
    On the trial of the motion, the plaintiff offered in evidence the execution with the return as set forth above, except that the costs were $ 1537f instead of $15-37 as stated in the motion and notice. He also proved the value of the slave, and rested his case. The court below entered a judgment against the sheriff and his sureties for the value of the slave and the twenty per cent, interest allowed by the statute; and they prosecuted this writ of error.
    
      Jas. H. Maury, for plaintiff in error,
    insisted,
    1. That the execution being variant from that stated in the notice and motion, was improperly admitted in evidence.
    2. That the return, so far from showing a voluntary and unauthorized omission to levy, showed an actual levy and its legal removal by the interposition of the claimant; and it did not appear that there was any other property of the defendant to levy on, and therefore it did not appear that he had omitted to levy. He cited How. & Hutch. 634; lb. 653; 3 Black. Com. 163; 2 Mason’s Rep. 513; 2 Stark. Ev., tit. Sheriff, p. 749.
    3. It is objected that a married woman cannot prefer a claim to property except in conjunction with her husband; if this be true, the claim and affidavit, &c., are not before the court, and she and her husband, the presumption is, united in it, if the law so require it.
    4. It is said a married woman cannot give bond; admit it. It does not appear what sort of a bond was given, whether she joined in it or not; the presumption is she gave a valid bond; if not valid, it should have been shown. Even if void as to her, it was good against the sureties. 7. S. & M. 441; 5 Halst. 160.
    5. That the court improperly admitted testimony outside of the return itself.
    G. V. Moody, for defendant in error.
    1. The return of the sheriff does not show that the claimant made affidavit as required by law; without this, the claim was void, and the delivery of the property to the claimant unauthorized and voluntary. 1 How. & Hutch. 634, sec. 20.
    2. A married woman cannot give bond to try the right of property at law. She cannot bind her separate estate, except in the mode pointed out by the statute. 7 S. & M. 64, 84; How. & Hutch. 332; Acts of 1846, p. 152. A judgment against the wife would not have bound her separate estate; nor would her sureties be liable, if the bond be void as to her.
    3. The plaintiff was not precluded from going outside of the return for proof; it was done in 2 S. & M. 387.
    4. The variance alleged was immaterial, as decided in 4 S. & M. 650.
   Mr. Justice Thacher

delivered the opinion of the court.

This is a motion against Moore, sheriff of Claiborne county, and the sureties in his official bond, under the statute, (H. & H. 462, sec. 42,) for “voluntarily and without authority omitting to levy an execution.”

The following is the return upon the execution : Executed this writ according to law by levying on a negro man, a slave named Dick, claimed as the property of Benjamin W. Thompson, Feb. 25, 1847. R. M. Moore, sheriff, by E. Conklin, dep. sheriff. The within named negro slave Dick, levied on as the property of defendant, Benjamin W. Thompson, is claimed by Caroline M. Thompson, wife of said Benjamin W. Thompson, and bond taken for a trial of the right thereof, with B. W. Thompson and James S. Mason as her security thereon, and the said slave delivered to her March 17, 1847. R. M. Moore, sheriff.” All the proof adduced upon the hearing, consisted of the fieri facias and the foregoing indorsement thereon, due notice to the sheriff and his co-defendants in the motion, and the value of the slave. Upon these facts the circuit court pntered judgment against the sheriff.

The sheriff was justified in suspending the final execution of the process. By statute, a feme covert may hold slaves as her separate property, and the law necessarily affords her a means of vindicating any claim she may have t.o such property. It is not impossible that the statute in this particular has so far bestowed upon a married woman a sole character, as to enable her to pursue her remedy alone. But the proceeding upon which the sheriff acted, is clearly almost only voidable, and not void. It was not for him to disregard the proceeding. A claim was made to the property in execution, and a bond executed thereon. This was enough to stay the hands of the sheriff. A voidable process is a sufficient justification to a sheriff.

Judgment reversed, and a judgment directed to be entered in this court, overruling the motion.  