the court to take cognizance of the acts of the principal. In that suit, all the defenses of the securities could be made, and the decree against the principal, and against them, would be conclusive for them, in any action they might bring against the principal, for any indemnity on account of the decree and its performance on their part. In this case the principal was dead, no personal representative of her was in court; when her securities shall have paid the decree rendered against them, they will have no cause of action against her estate but what will be disputable, for it will not be bound by proceedings to which it, or any person representing it, was not a party. And although

it had been alleged and proved that Mrs. Moren died insolvent, and with no expectations of any estate to fall to her, the legal principle would not be altered. The next case that would arise under the affirmance of the decree of the circuit court, might be where there was an indemnifying fund, and the sureties would have to show the legality of the decree against them, because their principal was not a party to it, and it would not be a charge upon the fund. The effect of the Virginia rule, as followed by this court in Clark vs. Shelton, goes far enough in extending the jurisdiction of chancery over a purely legal obligation: and we cannot, by a further extension, hold the securi} ties of Mrs. Moren accountable in an independent proceeding, and which will not afford a legal right for their indemnity.

None of the authorities cited, or of the several Virginia, and other decisions upon this subject, which we have been able to find, show the exercise of an equitable jurisdiction over securities, in the absence of the principal, or of his representative, or of persons interested in his estate. But the case of Moore vs. Armstrong, 9 Porter 709, was such a case, and was sustained by the Supreme Court of Alabama. The doctrine of that case is acknowledged, in the opinion, to be opposed to decisions of South Carolina; and it is inconsistent with the conclusion to which we have arrived. It is founded upon the right of persons interested in an estate, to have relief against the securities upon a forfeited administration bond, and the

want of means of enforcing a legal remedy on the bond when the principal has made no settlement, or has not, in the proper court, been adjudged to have wasted the estate. We do not consider that such legal inability existed in this case.

The securities of Mrs. Moren, by the decree of the court below, are to pay an amount she owed to the estate of Samuel Moren, which amount was ascertained when there was no person to represent her before the court.

For the reasons herein given, the decree of the court upon this branch is disapproved, and the bill, as against Mrs. Moren's securities, and the representatives of one of them, is dismissed with costs.

What would have been our opinion upon the merits of this case we need not say; but we will not forbear expressing our gratification to find that this suit, though in the names of the heirs of Samuel Moren, is mainly prosecuted by, and on behalf of strangers, in blood, to the widow, and first personal representative of the owner of the property. The case shows that Mrs. Moren was left with a family of nine children, the oldest of whom was young enough to be a charge upon her, with a parcel of negroes of such a sort as that, through helplessness from infancy and child bearing and age, the most of them served only to increase her cares and expenses. And because the struggles she made to keep her children together, and to raise the servants for the children, were not self-sustaining efforts at the time, this suit was begun to make the deficiencies good out of her securities, and in the names of those who owed gratitude to her motherly trials, and oblivion to her womanly failures. Though, it need not be said that she was unsuccessful, for her family was kept around her own hearthstone while she lived; and the negroes, that were useless and burdensome to her, by their growth and increase of price, have become a valuable estate to her children, which never could have been, if she had acted with the children and servants according to the strict rules to which her securities are sought to be held. amenable in this court.

Upon the third part of the case, that which makes Collins, Shower, the Blocks, Phillips and Pettigrew parties, to cause them to deliver up or account for certain slaves, or to make the securities of Mrs. Moren pay for them, little need be said. For Shower, the only one of these against whom the heirs could maintain a suit, has not possession of the negroes sold to him, and the case seems to be abandoned against him, on account of his insolvency, and the value of the slaves is sought to be charged against the securities.

It is not proved that Mrs. Moren sold Ben to Collins, while the ownership of Bryant, Peggy and Lucy never was in the estate, so as to charge Phillips, Pettigrew and the Blocks, with having its property; although, as between Mrs. Moren and the estate, the fact may be, though not proved to be, that the cotton that paid for Bryant, and the difference between him and Peggy and Lucy belonged to the estate.

Any relief concerning any of these negroes could be afforded only by virtue of this part of the case being joined with others that were grounds of equitable interference. Such not being the case, we are spared the review of the dismissal of the bill decreed by the court below upon this branch of the case.

The end of the whole case is, that calling all the decrees of the court below one, It is reversed, and the bills of the plaintiffs are dismissed, such decree of dismissal being entered here as should have been made by the court below. And the case is remanded, only that the administration of Johnson upon Moren's estate be remitted to the probate court, as directed in this opinion.

ATKINSON ET AL. VS. GATCHER.

Corn is embraced by the clause of the statute which exempts from execution "all such provisions as may be on hand for family use."

The court properly left it to the jury to determine whether the whole of the corn which the defendant in the execution had on hand at the time of the levy was necessary for family use.

The defendant did not waive the benefit of the exemption by executing a delivery

bond, he claiming the benefit of the statute at the time of the levy and sale, and protesting against both.

Provisions on hand for family use are exempt, whether the defendant have other property subject to execution or not, and he is not obliged to furnish the officer with an inventory of his provisions.

If a constable sell corn which is exempt from execution, against the consent of the defendant, he is a trespasser, and so is the plaintiff in the execution, if he . direct the levy or sale.

Where an execution is directed to the constable of one township, and by order of the justice who issued it, the direction is changed, and the execution directed and delivered to the constable of another township, the amendment though irregularly made, does not render the process null and void.

Where an execution, regular upon its face, is directed to and placed in the hands of a constable of a township other than that in which the judgment is rendered, he has power, under the statute, to execute it any where in the county.

Instructions based upon evidence which has been excluded by the court, are out of place, and have nothing to rest on.

Appeal from Columbia Circuit Court.

Hon. LEN B. GREEN, Circuit Judge.

CARLETON, for the appellants.

An authority by the justice to alter a particular execution is good, though authority to alter any and all executions is void. Pierce vs. Hubbard, 10 John R. 405. The alteration by the constable at the instance of the justice was his act.

Justices of the peace have jurisdiction throughout the county, and so have constables to execute civil process. Gould's Dig. sec. 29, p. 254, sec. 34, p. 260.

The execution was on a judgment valid on its face, and therefore justified appellant, Atkinson, and should have been read in evidence. Smith vs. Shaw, 12 John. R. 257; 5 Wend 240.

Before a party can claim the benefit of the law exempting from execution he must render, under oath, to the officer, a schedule of all his effects. Gould's Dig. sec. 23, p. 503. He must affirmatively show that he is entitled to the benefit of the act. 14 John. Rep. 474.

The giving of bond for the delivery of the corn, and receiving credit on the execution, without objection, for the proceeds of its sale, were a waiver of the trespass, if any was committed.

Mr. Chief Justice ENGLISH delivered the opinion of the court. This was an action of trespass by John M. Gatcher against Wm. W. Atkinson and Elisha T. McClure, in Columbia Circuit Court, for taking and converting fifty bushels of corn.

The defendants pleaded not guilty and justification, in short by consent, there was a trial, and verdict against them for $46, a new trial refused them, and they excepted and appealed.

The corn was levied on and sold by the defendant Atkinson, as constable, under an execution, in favor of his co defendant, McClure, against the plaintiff, Gatcher.

Gatcher was a farmer, and had a wife and two or three children. When the corn was levied on, 30th November, 1858, he had but 85 bushels, which were not more than enough to support his family. He claimed that the whole of the corn was exempt from execution under the statute, as provisions, and forbid Atkinson to levy on it. But he levied on over fifty bushels of it, and Gatcher protesting that the corn was exempt from execution, gave a bond for its delivery on the 9th of December, 1858, the day fixed for the sale. The corn remained on his premises until the day of sale, when he again claimed that it