¶1Action to try titles to lands in Union D:strict,. before Johnson, J. Plaintiff produced a judgment in favor.o! Sims against oneEdmondson; and a sheriff’s title reciting the judgment and an execution of ji. fat pursuant thereto; a sale, &c. under which he claimed *227the lands in dispute as purchaser j and rested on this title, without producing the execution, or giving any account of it, or any evidence of the use of diligence to procure it; which the Judge allowed, upon the authority of the case of Hopkins v. De Graffenreid, (vide 2 Bay, 441.) On the other side, (agreeably to the resolution of the court in the last mentioned case) the execution was produced, in order to shew that the same had illegally issued, and could not warrant the sale in question. The judgment appeared to have been rendered in November, 1795, aud the execution bore date the 1st November, 1794, upwards of tweve months prior to the rendition of the judgment; and was returnable to the next spring court, which was antecedent to the levy on the land. On the judgment in the margin,' however, there was a note signifying that execution issued sometime after the judgment was signed; and it was concluded that the date of the execution was a mistake of the clerk, and ought not to vitiate the execution and sale. The Judge, however, was of opinion that the execution was void, as having issued prior to the judgment, and could not warrant the sale; and more especially that the sale was invalid, because the sheriff could not levy and sell after the return of the ft. fa., and therefore granted a non-suit. The motion before this court was to set aside the non-suit, and grant a new trial. The motion was argued by Smith for plaintiff, and Gist for defendant, and a majority of the court were inclined to grant the motion ; but at the instance of Bkevakd, J., took further time to consider the same: and afterwards at the meeting of the Judges in April, 1803, at Golumbia, present all the Judges except Gkimke, J., the court were unanimous in discharging the motion : ' 1st. Because it appeared that the sheriff acted under a void authority, there being no judgment to warrant the execution under which he sold. 2d. Because the sheriff di 1 not act in pursuance of the execution under which he affected to sell the land in question ; having levied and sold subsequent to the return of the writ, .which was then functus off. pio. The court however seemed to think the execution might be amended, aud made pursuant to the judgment: but this ought to be done in the district court; and if done, it could not have- effect to cure the proceedings under it antecedent to the amendment.
¶2Motion refused.