Granville County NcArchives Court.....Woodson Daniel Et Al, Maurice Smith V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 27, 2009, 8:30 am

Source: Nc Reports
Written: 1819

Maurice Smith v. Woodson Daniel, Josiah Daniel and Elizabeth Daniel, Executors 
and Executrix of the last will of Josiah Daniel, Sen., dec'd and against 
Robert Wade

From Granville

May Term 1819

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 
representative of B or C are made parties to this decree. A sues out his 
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 60£ and pays the money into the office, he being ignorant of the 
bequest. Elizabeth sues the Sheriff, and recovers the value of the negro girl. 
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 to 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 seizure: 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 return 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 injunction 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 1811, when he died, having previously made 
and published his last will and testament, which was proved in Granville 
County Court, at August term, 1811; of which will he appointed Woodson Daniel, 
Josiah Daniel and Elisabeth Daniel, executors and executrix. Woodson Daniel 
alone look 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 Master's report, and decree that the injunction be made perpetual as to 15
£. 2s. 4 1/2d. and be dissolved for 30£. 6s. O 1/2d. the remainder of the said 
judgment, with interest due thereon, and that the Defendant have leave to 
proceed at law for the same." At the time of making the decree, Boyd and 
Daniel were dead, and the representatives of neither had been made parties to 
the suit. On 22 October, 1812, Wade sued out a fieri facias on his judgment at 
law for the 30£. 6s. 1 1/2d. 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 fi. fa. issued from November term, 1812. 
returnable to February term, 1813, but was not delivered to the Sheriff. 
Another fi. 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 in the usual manner, and returned on the fi. fa. as 
follows, to-wit: "Levied on a negro girl, Nelly, and all the right and title 
of the Defendant, Josiah Daniel, sold at public sale on 26 April, 1813" — 
James Edwards bought 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 to Elizabeth Daniel, the 
executrix of his will, who, after the probate thereof, took the girl Nelly 
into her possession, 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 al March term, 1815, when a 
verdict and judgment were rendered for her, for the value of the interest in 
Kelly; 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 he 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 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 properly 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 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 
he 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 two 
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 he 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.


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