¶1This was an action of detinue for a slave. It appears from the bill of exceptions, that the claim of Mitchell to the slave in controversy arose under a purchase by him, at a sale made by the sheriff, on an execution against one Burnham. The plaintiff in error derived title also under Burnham. On the trial, the court was requested to instruct the jury, that the execution under which Mitchell claimed was absolutely void, as it had been issued on a judgment rendered more than a year and a day, which had not been revived by scire facias. The court gave this instruction; and informed the jury, moreover, that Mitchell could acquire no title under that sale. The defendant below excepted.
¶2This instruction was clearly erroneous. The execution was only voidable, but not void. The judgment was entirely regular ; and a purchaser at a sale under an execution issued upon it, which is merely irregular or voidable, cannot be prejudiced for that reason. The authorities are full and direct on this question. 2 Howard, 607. 16 John. Rep. 537.
¶3There are several other questions in this case; but it is not deemed important to notice them, as they are subordinate to the one which has been considered,
¶4For the error of the court below, in giving the instruction above, the judgment must be reversed, and a venire de novo awarded.