#### JAMES SLOAN, ADM’R, vs. CYRUS STANLY & AL.

Where an execution is about to-be levied by a constable, the debtor, if he hag personal property, must shew it, and, if he does not, the officer commits no wrong by levying on the land in che first instance.

So, if it does not appear that the officer knew of the existence of the personal property, he is justifiable in levying on the real estate.

If an interlineation appears on the face of an officer’s return, and there is no evidence to shew when it was done, the Court will presume that it was done before the return was made, when the officer had authority to alter his return.

Appeal from the Superior Court of Law of Guilford County, at a Special Term in July 1850, his Honor Judge Dick presiding.

This case was submitted to the Court on the following facts.

On the 4th day of August 1848, Aaron Mendenhall, as executor of Moses Mendenhall, dec’d, sued out four different warrants against one Israel Stanly, which were all returned before a magistrate, and judgment granted on the 8th day of September, 1848, amounting in all to about *628the sum of four hundred and fifty dollars ($450.) Executions were issued on the same day, and levied on two tracts óf land, and the levies vtere returned to Novem* ber Term 1848, of Guilford County Court. After the levies aforesaid, and before November Term 1848,'Israel Stanly, the defendant, died. At February Term 1349, the.heirs at law of said Stanly were made parties defendants. At February Term, the Court ordered the lands to be sold, and venditioni exponas to be issued, from which order the heirs of Israel Stanly appealed to the Superior Court.

After the cases aforesaid were in the Superior Court Aaron Mendenhall died, and administration.de bonis nont on the estate of Moses Mendenhall, was granted to James Sloan, the present plaintiff. In the Superior, Court, the plaintiff moved for a confirmation of the order of the County Court, which motion was opposed by the defendants; l!st. Because the judgments were void, having been, as the defendants alleged, entered up more than thirty days, after the date of the warrants. 2ndly. Because the defendant had personal property, which ought to have been levied on, instead of the land. Srdly. Because, the levies virere fraudulent, and were interlined by the constable, after they had been returned to Court.

As to the first objection made by the defendants, the Court was of opinion that the first levy, if made on the 8th day of September, as it purported to be, was good, for by excluding the 4th of August, the day of the levy, and excluding five Sundays, the 8 th of September would be the 30th day. As to the second objection, it appeared ,in evidence, that, at the date of the levy, Israel Stanly had personal property to the amount of $350, or more, but it was admitted by the defendant’s counsel, that he had not personal property, to discharge the whole of the said judgments, and there was no evidence^tending .to prove, that the constable was requested by Stanly, to levy on the *629personal property, or that the constable knew of the existence of the personal property. It was also proved and admitted that Israel Stanly, on the 25th of September 1848, conveyed the whole of his personal property in trust, to secure other creditors.

As to the second objection, the Court was of opinion j that the' constable was authorized to levy on the land,' because the personal property was not sufficient to discharge the four judgments, and therefore the levies were not void;

As.to the third objection, it appeared by inspection of the levies, that the words, “goods and chattels,” were interlined in each of the four levies, in a different colored' ink. The Clerk of the County Court was examined ; he stated, that he could not say whether the levies were now different, from what they were when they were first returned to his office : that after the papers were first returned to his office, the constable once or twice (by the consent of the clerk,) took the papers to counsel, and returned them again to the office. The defendants then proved by a witness, that on the day Israel Stanly was buried, he, the witness, informed the constable of his death. The constable remarked -that he ought to have been there, and levied before his death. The Court, being of opinion that the defendants failed to prove that the levies were interlined after they had been returned to Court, and had also failed to prove that the levies were made after the death of Stanly, therefore ordered and adjudged, that the ox-der of sale made by the County Court be confirmed, and that a procedendo issue to the County-Court; from which orders, the defendants prayed for and obtained an appeal to the Supreme Court.

Mordicad and Miller, for the plaintiff.

No counsel for the defendants.

*630Nash, J.

We have examined the exceptions died against the opinion of the Judge, who tried the cause, and concur with him in his judgment. The first objection is founded, we presume, upon the 7th section of the act of 1836. It directs, that “all warrants issued by a Justice of the Peace shall be made returnable on or before thirty days from the date thereof, Sundays excepted, and not after,” &c. The warrant in this case literally complies with the act. It is directed “to any lawful officer to execute and return within thirty days, Sundays excepted.” The exception is, that the judgment is void, because it was rendered or entered up more than thirty days after the date of the warrant. Looking to the substance, and not simply to the language, and the objection is, that, the warrant was returned after the expiration of the time designated in the act and the judgment was then rendered. The warrant was dated on the 4th of August 1848, which was Friday, and the judgment obtained on the 8th of September. Supposing, that a judgment obtained before a magistrate, on a warrant returned after the thirty days, as stated in the act, be void, the question does not arise here; because, by allowing the four Sundays in August and the one in September, the warrant was returned on the 30th day.

The second objection is, that the defendant in the execution had personal property, which ought to have been levied on, and not the land. The case shows, that, at the time the judgment in this case was obtained, three others were given against the present defendant in favor of this plaintiff, amounting in the whole to $150. Executions were issued upon all of them, at the same time, and all placed in the hands of the same officer; and all of them were levied at the same time. The defendant in the executions had personal property, but not to an amount sufficient to satisfy them. ,Tbe personal property was not shown to the officer, nor did he know of its existence.-— *631The Act of 1836, Rev. Stat. ch, 62, sec. 16, expressly re-cognises the personal property of a debtor as the primary fund for the satisfaction of a Justice’s execution ; nor is the officer at liberty to levy it on the land, but when no goods and chattels are to be found, or not a sufficiency to discharge it. This provision is for the benefit of the debtor, and when an officer is about to make a levy, if the debtor has personal property and wishes to save his land, he must show it. If he does not, the officer commits no wrong by levying on the land in the first instance. The fact, however, disclosed by the case, that the officer did not know of the existence of the personal property, or what is the same thing, that there was no evidence to prove that he did know it, is decisive of this objection — he could not levy on that, of whose existence he had no knowledge. Moreover, no possible injury could arise to the defendant in the execution or to his heirs, as the former had, before the return of the execution, conveyed away, by a deed of trust, all his personal property to secure debts of a greater amount than it was worth.

The third exception is, that the levy was fraudulent and interlined after it came to Cpurt. The fraud consisted in the alleged fact, that, after the levy had been returned to Court, the officer had altered o his return by interlining the words “for the want of goods and chattels.” There is nothing in the case to show, when those words were interlined, whether before or after the return of the levy. The constable is an officer, whose official returns are made on oath; and, as, before he makes his return, he may alter it any manner he pleases, so as to present the truth, we are bound in common charity and justice to presume in this case, the alteration was made at the time when he could legally make it.

In what the fraud consists,of which the defendant complains. beyond the iuterlineatiou, we are not positively informed. We gather, however, from the close of the *632Judge’s opinion, that it was in the alleged fact, that the levy was made, after and not before, the death of Israel Stanly, the father of the defendants, and against whom the judgment was obtained. The case discloses no evidence, showing that the levy was ante-dated.

We concur with his Honor in the view, which he took ■of the case, and that there is no error in the proceedings in the County Court. The judgment is affirmed ; and a procedendo will issue to the County Court of Guilford.

Per Curiam. Judgment accordingly.

Note. — There were three other oases, at this Term, between the same parties, in which the same judgment was rendered.