#### Maurice Smith v. Woodson Daniel, Josiah Daniel and Elizabeth Daniel, Executors and Executrix of the last will of Josiah Daniel, sen. deceased, and against Robert Wade.

>From Granville.

A recovers a judgment at law against B and C, which, is stayed by injunction. B dies, and the suit in Equity is prosecuted by C, who also dies before the hearing, making his will, and bequeathing a negro girl slave to his daughter Elizabeth. A decree is made after his death, dissolving the injunction in part, and giving A leave to proceed upon his judgment at law. Neither the representatives of B or C are made parties to this decree. A sues out Ins execution against the goods, chattels, lands and tenements of B and C; which execution the Sheriff levies upon the negro girl slave, bequeathed to Elizabeth, and then in her possession by the assent of the executors; he sells her for 601. and pays the money into the office, he being ignorant of the bequest. Elizabeth sues the Sheriff j and recovers the value of the negro girl j And the Sheriff thereupon, moves the Court for leave to amend his return on the execution, so as to set forth the fact that there was no property of B and C to be found; and also for leave to withdraw from the office the money which he had paid in. This motion allowed: for.

Upon the application of Elizabeth, the Court would have restored the property after the seisure; and, as she elected to bring a" suit against the Sheriff, he should be considered as standing in her place, and having the rights which she had before the action was brought.

The Sheriff may be permitted to make a return upon an execution, or to amend it according to the truth of the case, at any time after the retura day, even where important consequences as to the rights of the parties may be produced by such amendment.

This was a motion on behalf of Maurice Smith, Sheriff of Granville county, for leave to amend his return on the execution hereafter mentioned, upon the following case :• Robert Wade sued out a writ, returnable to Granville County, Court at May term, 1800, against John Boyd and Josiah Daniel, sen’r, which was duly executed and returned, and the Plaintiff therein obtained judgment at May term, 1801 — the Defendants filed their bill in the Court of Equity for Hillsborough district, praying an *129Injunction against the judgment at law, which was granted. Boyd then died, and the suit in Equity was prosecuted by Daniel alone until the beginning of the year 1811, when he died, having previously made and published his last will and testament, which was proved in Gran-ville County Court, at August term, 1811; of which will he appointed Woodson Daniel, Josiah Daniel and Elizabeth Daniel, executors and executrix. Woodson Daniel alone took out letters testamentary. At September term, 1812, the Court of Equity- made the following decree in the cause, to wit: ‘‘ The Court doth confirm the Mas- “ ter’s report, and decree that the injunction be made ie perpetual as tofl5J. 2s. 4id. and be dissolved for 301. 6s* “ 0 id. the remainder of the said judgment, with interest “ due thereon, and that'the Defendant have leave to pro-(i ceed at law for the same.” At the time of making the decree, Boyd and Daniel were dead, arid the representatives of neither had' been, -made parties to the Suit. On the 22d October, 1812, Wade sued out a fieri facias on his judgment at law for the 30k 6s. 0 id. and interest and costs, against the goods and chattels, lands and tenements, of Boyd and Daniel, returnable to November term, 1812, and delivered it to Smith, the Sheriff', who ■ returned on it that it “ came too late to hand.” Another ^, -fa. issued from November term, 1812, returnable to February term, 1813, but was not delivered to the Sheriff. Another f.fa. was issued from February term, 1813, ‘ returnable to May' term, 1813, which was delivered to Smith’,-and which he levied on a negro slave named Nelly, and he sold her hi the usual manner, and returned on the jfi. fa. as follows, to wit: “ Levied on a negro girl, Nelly, arid’ all the right “ and title of the Defendant, Josiah Daniel, sold at public ‘‘ sale on the 26th April, 1813 — James Edwards bought ii said negro for 65?. This debt and costs-satisfied out of “ the money arising from said sale.”

Josiah Daniel, by his will, bequeathed the negro girl Nelly to Elizabeth Daniel, the executrix of his will, who, *130after the probate thereof, took the girl Nelly into her pos* session, claiming to hold her as legatee, and by the assent of the executors, Woodson Daniel and Josiah Daniel, jun. ‘But such claim and assent was unknown to Smith.. In May, 1813, Elizabeth Daniel brought an action of trespass against Smith,' for the seizing and selling of Nelly, in Granville Superior Cotirt of Law, which came on for trial at March term, 1815, when a verdict and , judgment were rendered for her, for the value of her-interest in Nelly; whicli judgment Smith paid. Whereupon, Smith obtained a rule in the County Court at May "term, 1815, on Wade, and also on the executors and cxeeuMx of Josiah Daniel, sen’r, to show 'cause why he should not amend his return on the Ji. fa. aforesaid, or set the said fi. fa. aside, and he be allowed to draw from the office the .money paid in by him on the same. Upon the hearing of the rule, it was made absolute, and Smith was allowed to amend his return by striking out the whole thereof, and inserting the words “ There are no goods, chattels, lands and tenements of the Defendants to be found.” . And he was permitted to receive from the clerk the monies paid into the office on the/¡.fa. From this judgment Woodson Daniel appealed to the Superior- Court of Law for Granville county; and the said,rule and motion coming on to be heard at September term, 1816, it was ordered that the same be sent to this Court for. their opinion, Whether the order of the County Court should be affirmed, or what other or further order, pulp or judgment, should be given in the premises. -V •»*,

Taylor, Chief-Justice,

delivered the opinion of the Court:

Wade recovered a judgment in May, 1801, against J. Boyd aiid Josiah Daniel, sen’r, which they stayed by injunction. Boyd died, and the Equity suit was prosecuted by Daniel alone, until 1811, when he died, having* appointed Woodson, Josiah and Elizabeth Daniel his exe*. *131cutors and executrix, of whom Woodson alone took out letters testamentary. At September term, 1812, theinjunction was dissolved as to part of the sum enjoined, and the Plaintiff at law ivas allowed to proceed. He did so, without making either the representatives of Boyd or Daniel parties to the judgment, by suing out a fu fa. in October, 1832, and two others afterwards,* the last of which was levied by Smith, the Sheriff, on a negro girl named Nelly, all the right and title of whom, was sold by the Sheriff on the 26th April, 1813, to James Edwards, and the judgment was satisfied out of the sale ; to which effect a return was made on theJL fa. Itseems that Nelly had been bequeathed by Josiah Daniel to Elizabeth, who. took her into possession with the assent of the executors, and held her as legatee. Elizabeth sued Smith and recovered from him the value of Nelly, which he paid, and he now moves to amend bis return on the execution and withdraw the money from the office. It is admitted, that the bequest to Elizabeth and the assent of the executors was. unknown to Smith. The motion appears to be supported by manifest justice; and a compliance with it is doubtless authorised by law. The Sheriff has paid out of his own pocket, the sum recovered by Elizabeth, for doing what, to all appearance, was an official duty in the ordinary course of law. He knew not of the irregularity of the execution, or of the right of Elizabeth to the slave : and although this was no justification to him, as against Elizabeth, whose property he had seized under an execution against Josiah’s estate, yet as againt Wade, who claims the money madeby the sale, and who sued out a void execution, it gives the Sheriff the strongest possible claim. This execution might have been set aside on the motion of Josiali Daniel’s representatives; and upon the application of Elizabeth, inasmuch as her right to the negro was clear, the Court would have restored the property after the seizure.* But as she elected to bring a suit against the Sheriff, he should be considered *132as standing in her place, and having the rights which she had before the action was brought. It is not just that Woodson Daniel should oppose this motion, unless it he s.jug^ce ^ia^. ^ Qf one p0rs0n should be paid out of the estate of another. That a Sheriff may be permitted to make a return upon an execution, or to amend it according to the truth of the case, at any time after the return day, is shewn by the cases of Bullit’s executor v. Winston,* and Baird v. Rice;† cases too, where important consequences, as to the rights of parties, were produced by such amendment. The execution in the case at bar was void, because issued after the death of Josiah Daniel, without making his executors parties : but I do not apprehend it was necessary to revive the judgment after the year, where a Plaintiff has been prevented from suing out execution by the Defendant’s obtaining an injunction out of Chancery. The case of Mitchell v. Cue et Uxor, overrules the cases in Salkeld and Strange to the contrary ; the Court saying that this rule of reviving a judgment of above a year old by a scire facias, before suing out execution upon it, which was intended to prevent a surprise upon the Defendant, ought not to be taken advantage of by a Defendant, who was so far from being surprised by the Plaintiff’s delay, that he himself had been trying all manner of methods, whereby he might delay the Plaintiff -, and, therefore, they not only discharged the rule, but discharged it with costs.‡ The Court are of opinion, the motion made on behalf of' Smith, should be-allowed.

*

1 Ld. Ray. 439. Bingliam on Judgments, 264.

‡

2 Burr. 660,.