26 N.C. 133 | N.C. | 1843
At March Term, 1843, of Lincoln County Court, the sheriff returned into court a number of writs of venditioni exponas. and fi. fa. issued from that court against one William Fullenwider, at the instance of different creditors, among whom was the present plaintiff, Jacob Ramsour, and the present defendants. The following return was made by the sheriff on one of the executions, No. 69, in favor of Jacob Ramsour:
"The following executions, to wit, Nos. 71, 72, 73, 74, 75, 87, and 93, against the property of one William Fullenwider, issued from June Term, 1842, of this court, came into my, the high sheriff's, hands. And also two other executions bearing the same teste, in favor of Jacob Ramsour against the property of the said Fullenwider for the sum of $1,131.61, were placed in the hands of one of the deputies (Isaac Lowe) of the said high sheriff. On 3 December, 1842, the said Isaac Lowe, deputy as aforesaid, by virtue of the said two executions in favor of the said Ramsour, and at his special request, levied on and took into (134) his possession the following negroes, to wit, Rosetta, Bob, and Isaac, said negroes then being in the possession of and claimed by one John Hayes as his property. The said Ramsour, before the making of the said levy, gave to the said deputy a bond to indemnify *105 him against the claim of the said Hayes, and without which bond said deputy would not have made said levy. On the following Thursday (it being the court week to which all of the above executions were returnable), as soon as I, the said sheriff, became aware of the said levy, I directed the said Lowe to endorse the like levy on the said executions, to wit, Nos. 71, 72, 73, 74, 75, 87, and 93, and to date said levy as of 3 December, 1842, which was done. The said negroes were sold after due advertisement on 7 March, 1843, and Jacob Ramsour became the purchaser. No bond of indemnity was given or tendered by any of the execution creditors except the one given by the said Ramsour.
Amount of money made by said sale................. $549.00 Retained for fees, commissions and charges........ 47.45 -------- Balance remaining in my hands..................... $501.55
"I had made no appropriation of this sum, and I am ignorant how I should appropriate the same, and I therefore pray the court to direct how the same shall be appropriated. J. R. STAINEY, Sheriff. J. LOWE, Deputy Sheriff.
"The other writs venditioni and fieri facias, viz., Nos. 70, 71, 72, 73, 74, 75, 87, and 93, were endorsed: `The same return made on this as on No. 69; see 69.' J. R. STAINEY, Sheriff. J. LOWE, Deputy Sheriff."
On these returns being made, the counsel of Jacob Ramsour moved that the proceeds of the sale of the negroes set forth in the return of the sheriff be applied to the two writs of venditioni exponas issued at the instance of Jacob Ramsour, viz., Nos. 69 and 70. This motion was sustained by the court and the money directed to be applied accordingly. With this decision, Sarah Young and other execution creditors being dissatisfied prayed an appeal to the Superior Court, which was granted.
In the Superior Court it was adjudged that the money be appropriated to the executions in favor of Jacob Ramsour. From this decision the present defendants prayed for and obtained an appeal (135) to the Supreme Court.
This case is, in substance, an application to the court by the sheriff for information how he ought to make his returns upon the several executions which are in his hands. It is not like Yarborough v. Bank,
PER CURIAM. Reversed.
Cited: Dewey v. White,