Josiah Daniel, by his will, bequeathed the negro girl Nelly to Elizabeth Daniel, the executrix of his will, who, after the probate thereof, took the girl Nelly into her possession, (130) 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 Court 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; which judgment Smith paid. Whereupon, Smith obtained a rule in the County Court at May term, 1815, on Wade and also on the executors and executrix of Josiah Daniel, sen'r, to show cause why he should not amend his return on the fi. 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 fi. 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, rule or judgment, should be given in the premises.

TAYLOR, Chief Justice:

Wade recovered a judgment in May, 1801, against J. Boyd and 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 executors and executrix, of whom Woodson alone took out letters testamentary. At September term, 1812, the injunction (131) was dissolved as to a part of the sum enjoined, and the Plaintiff at law was allowed to proceed. He did so, without making either the representatives of Boyd or Daniel parties to the judgment, by suing out a fi. fa. in October, 1812, 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 26 April, 1813, to James Edwards, and the judgment was satisfied out of the sale; to which effect a return was made on the fi. fa. It seems 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 his 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 authorized 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 against Wade, who claims the money made by 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 Josiah 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. 1 Ld. Ray., 439. Bingham on Judgments, 264. But as she elected to bring a suit against the Sheriff, he should be considered as standing in her place, and having the rights (132) which she had before the action was brought. It is not just that Woodson Daniel should oppose this motion, unless it be justice that the debts of one person should be paid out of the estate of another. That a Sheriff may be permitted to make a return upon an execution, or amend it according to the truth of the case, at any time after the return day, is shewn by the cases of Bullit v. Winston, 1 Mumford (Va.) 269, and Baird v. Rice, 1 Call (Va.) 18; in these cases too 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, 2 Burrowes, 660, overrules the case 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 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. 2 Burr., 660. The Court are of opinion, the motion made on behalf of Smith should be allowed.

Cited: Purcell v. McFarland, 23 N.C. 35; Dickinson v. Lippitt, 27 N.C. 563; Cody v. Quinn, 28 N.C. 192; Williams v. Weaver, 101 N.C. 2. (133)