#### NATHANIEL TAYLOR to use of THOMAS BOGUE vs. GEO. M. WILLIAMS.

The person, who has the legal title to property sold under execution, has alone the right to recover the balance that remains from the proceeds of the sale, after satisfying the execution.

Where A. fraudulently conveyed a slave to B., and A.’s creditors afterterwards caused the slave tó be sold by execution, and the slave sold for more than enough to satisfy the execution, it was held that B., the fraudulent vendee, and not A., the fraudulent vendor, had a right to recover the balance, because as between A. and B. the legal title was vested in B.

And an order by A. on the officer for this balance infavor of B,, and pre senled by B., does not alter the case, for these acts do not transfer io A. the legal title, which is neéessary to support the action.

This was an action, tried at Fall Term 1840 of Chowan Superior Court, before his honor Judge Battue, having been brought to recover a balance remaining in the hands the defendant of the proceeds of a negro, levied upon and sold by him, as constable, under divers executions issued by justices of the peace against the plaintiff.

In support of the action,- the plaintiff produced the judgments and executions against himself, and the returns oí the defendant, as an officer, on the said executions, shewing that he had levied upori a negro girl, as the property of the present plaintiff, and had sold' her for an amount more than sufficient to satisfy the executions which he held, leaving a balance in his hands of one hundred and seventy-three dok lars forty-three cents. The plaintiff then proved that he had given an order on the defendant for the said balance in favor of one Bogue, who thereupon demanded the money of the defendant, in the name of the plaintiff, when the defendant refused to pay it. The defendant then produced and read in evidence a bill of sale from the plaintiff to Bogue for the negro girl in question and four other negroes, executed a few months previous to the judgments and executions aforesaid against the plaintiff; and insisted that Bogue, and not the plaintiff, was entitled to the balance in his hands, and that *250therefore the action in the name of the plaintiff, Taylor, not sustained, and this, whether the conveyance from Taylor to Bogue was fraudulent or not as against creditors.

The Court held and so instructed the jury that the general rule was, that the defendant in an execution was entitled to any balance, that might remain in the hands of the officer after satisfying the executions, and that the officer could not protect himself from the claim of the defendant in the executions, he having levied upon and sold the property as his, by shewing a previous- conveyance of the goods from him to another person; for that if he were bound to pay over the balance remaining, after satisfying the executions in his hands, to a previous purchaser from the defendant, he would have to decide upon the- genuineness and validity of the assignment, and would'therefore have to act at his peril; whereas, the rule, that requires him to pay the balance to the defendant in the execution, makes it always certain whom he is to pay, and therefore relieves him from the responsibility of deciding among conflicting claims: that in this case, the alleged assignee made a demand of the money in the name of his assignor, thereby shewing that he set up no claim for himself under the alleged conveyance, so that if the rule was not as above stated,- yet in this case the officer had no excuse for not paying the money to the defendant in the executions, and that therefore the action1 was well brought in the name of such defendant.

There was- a verdict for the plaintiff, motion for a new trial, which was overruled; and judgment for the plaintiff, from which the defendant appealed to the Supreme Court.

A. Moore for the plaintiff.

Heath for the defendant.

DaIxiel, Judge.

This was an action of assumpsit to recover money had and received by the defendant to the use of the plaintiff. Plea non assumpsit. The case was as follows: Taylor, to defraud his creditors, cotlveyed by deed a negro girl to one Bogue. The creditors of Taylor placed their executions in the hands of the defendant, who was a *251c onstable. He levied them on the aforesaid slave and sold her. After satisfying the executions, there was a balance money in his hands of $173 43 cts. Taylor drew an order on the defendant to pay this balance to Bogue; the defendant refused to pay as directed, whereupon Taylor brought this action. And the Judge charged the jury that the plaintiff was entitled to recover, as it was a balance of the sale after satisfying the executions against himself.

We do not agree with the Judge, who tried this cause. By the Stat. 13 Eliz. (see Rev. St. ch. 50, s. 1,) the bill of sale of the slave was void only as to the creditors, who were intended to be defrauded; it was good as between Taylor and Bogue, and transferred all the title Taylor had in the slave. When Taylor’s creditors had carved out of the property their demands, by force of the statute, the title to the balance remained where it had before been legally vested, to wit, in Bogue. The order Bogue brought to the defendant from Taylor was not of itself evidence that the aforesaid balance belonged to Taylor; for as between him and Bogue, he would have been estopped by his deed to say, that the slave, or any of the proceeds of her sale, was not the property of Bogue. The presentation of that order by Bogue cannot amount to an assignment of Bogue’s legal right to the money to Taylor, so as to enable the latter to maintain an action for it.

The difficulty in which officers might be placed, in investigating titles to property, il the law was not as the Judge charged, is no answer to the legal demand of Bogue. The constable in this case, as in every other case in which he acts, must proceed at his peril. There must be a new trial.

Per, Curiam. Judgment of the Superior Court reversed and new trial awarded.