#### Administratrix of Ufford v. Lucas.

From Hyde.

Admissions made to the sheriff by an individual, that he had no title to a slave on which the sheriff had levied an execution, are not conclusive evidence of the want of title in the person making the admission. Where during the pendency of a suit, leave is obtained to amend the writ and change the form of action, though such amendment be not made on the record ; if the suit be tried in its amended form, this Court will consider the amendment as having been actually made.

From the record transmitted to the Court in this case, it appeared that the writ was in Detinue, for a negro slave Lewis, and that during the pendency of the proceedings in the Court below, leave was obtained to amend the writ, but it did not appear from the record that any amendment had ever been made. The case was considered and tried in the Court below as an action of Tro-ver.

' It appeared that in the year 1811, a judgment had been obtained against one Bell, on which executions had regularly issued to the coroner of the county of Hyde, who, after the death of Bell, levied on the negro Lewis, in the possession of one John Ufford, his executor, and on the 7"th of July, 1818, sold the same at pub-lick sale to one Dukes.

It was proved on the trial, that during the bidding, Dukes was sent for by Ufford, who was sick at the time, that the bidding was suspended during his absence, and that on his return, Dukes said that Ufford directed him to buy, and he accordingly bid off the negro. It further appeared, that previous to the sale, Ufford had been heard to request Dukes to purchase the negro for him. The coroner testified that Dukes paid him about $20 of the purchase money, that the balance of it was never paid him by any one, but from a belief that it had in *215some manner been settled by Ufford, be executed to Uf-ford a bill of sale for the negro, and immediately after the sale, the negro went into the possession of Ufford. Dukes testified that Ufford was indebted to him at tlic time of the sale, in the sum of 0200, that Ufford request-' ed him, as his agent, to purchase the negro at the sale, stating that by the purchase ho would be enabled to pay the debt of 8200, and another debt due one Jordan. Dukes was instructed by Ufford to bid to the amount of $375 for the negro, and after the sale, Dukes, at the request of Ufford, paid to the coroner 850, the amount of the execution. The testimony of a witness, Blount, proved that be bad, previous to the sale, been requested by Uf-ford to act as his agent in the purchase of the negro, but afterwards Ufford declined his assistance. After the sale, Ufford requested witness to ascertain what price could be obtained for the negro from a trader in slaves then in the place. This witness also proved that Dukes demanded from the coroner a bill of sale for the negro, and that the officer replied it was not then convenient to give him one, but that he would da so at some future time ; that the coroner demanded also of Dukes the amount that the negro sold for, and that Dukes replied it was unnecessary to pay the whole money, as the surplus, would be immediately paid by the coroner to Ufford, to whom it belonged.

The Defendant relied on a bill of sale from the Sheriff, and introduced evidence of a judgment against Dukes,, obtained in Craven Superior Court, and execution there on, a levy on the negro Lewis, by the Sheriff, on the 10th July 1818, by virtue of said execution, and a sallen the 27th of the same month, at which Defendant became the purchaser.

A witness, Moore, testified on the part of the Defendant, that he was present at the sale made by the Coroner on the 7th of July ; that he asked Dukes privately if he was bidding for himself, and Dukes in reply affirmed *216that lie was. At this time Dukes was very much involved, and in desperate circumstances. On the next day Dukes told the witness that he had paid the amount of ^ execution, and was going to get possession of the negro. On the evening after the sale, Ufford told the witness that the title to the negro was in Dukes, and not in himself. Another witness, Jordan, also testified that on the 10th of July, when the Sheriff levied on the negro, Ufford told the witness that the title to him was in Dukes, and urged him to buy of Dukes. The Sheriff testified that lie had several writs of fi. fa. in his hands against Dukes, and that he could find no property to satisfy them. On the 10th of July, understanding that Dukes had purchased the negro at the Coroner’s sale, and that Ufford claimed title to him, he asked Ufford if he claimed the negro Lewis, to which Ufford replied that he had no claim or title to the negro, that Dukes owned him, and that he had just informed Jordan of the same fact. The negro was then levied on as the property of Dukes, and on the 27th of July, the day of sale, Ufford told the Sheriff that notwithstanding the former declarations made by him, Dukes had no interest in the negro, further than to sell him and pay himself the amount of the debt due from Ufford to him. Ufford forbade the Sheriff to sell, but produced no bill of sale to himself. The deputy of the Sheriff swore that he made the levy on the negro, who was at that time in the field of Ufford, but unemployed. Ufford never in the presence of this witness claimed the negro, and did not object to the levy.

The Court instructed the Jury, that if they believed the conveyance taken by Ufford was intended fraudulently to cover the property of Dukes, the Defendant was entitled to a verdict; on the contrary, if they believed it was fair and bona fide, the Plaintiff ought to recover.

The Jury found a verdict for the Plaintiff, and Defendant obtained a rule to shew cause why a new trial *217should not be granted. The rule was discharged, and from the judgment rendered pursuant to the verdict, the Defendant appealed to this Court.

Mordecai and Rodman for Defendant.

Mordecai insisted on the difference apparent on the face of the proceedings between the writ and the nature of tire issues, and trial in the Court below ; and Rodman contended, 1st. That it was such a fraud in Ufford to disown his title, when applied to by the Sheriff for information at the time of the levy, as precludes him from setting up title afterwards — (S Wilson’s Bacon, 299 lo SOI — 2 Johns. Hep. 573.)

2d. That whether fraud or not, is a question of law, to he decided by lire Court, and not an issue of fact to be determined by a Jury — (9 Johns. 337.)

3d. That tire Court below' should have instructed the Jury that the conduct of U ¡ford in disclaiming title was a fraud in Law.

Ami lastly, that on tire facts exhibited in the case, there did not appear to be any evidence of a detainer or conversion.

Per Curiam.

Whether the title to the slave was in Ufford or Dukes, depended on much conflicting evidence, which was fairly summed up and left by the Judge to the Jury. Their verdict ought not to be disturbed, unless the evidence preponderates very strongly against it, which we do not perceive that it does. The Jury probably knew the witnesses, and were able to judge of their credibility. Neither were the admissions of Uf-Ibid conclusive against his title ; they formed a circumstance lit, to be weighed and estimated with the other circumstances. The parties having agreed to amend, and all the proceedings after the agreement being in tro-ver, we must consider it the same as if an actual amend-*218meet had been made ; and so it must have been viewed 1>7 the parties, for the evidence of it is contained in the-proceedings up to the rendition of the final judgment.