Opinion
(December Term, 1840.)
1. A return by a sheriff on a fieri facias that "he has levied on goods, subject to older executions," without saying whether he had sold the property seized or still had it in his hands, or, if the latter, why he had not sold — whether for want of bidders, or of time, or other sufficient excuse — his not a "due return," because it does not answer the writ.
2. The sheriff who makes such a return is, therefore, liable to the fine of $100 imposed by the act of 1777 (Rev. St., ch. 109, sec. 18) for not making due return of process placed in his hands.
SCIRE FACIAS against the defendant as sheriff of SURRY, for not making due return of a fieri facias directed to him and placed in his hands at the instance of the plaintiff against one Dabney (323) Walker. The sheriff returned on this execution, "Levied" (on certain property, mentioning it), "subject to older executions." It appeared on the trial that the property levied on was worth about $2,000, and that the defendant, as sheriff, had in his hands executions entitled to preference over the plaintiff's to the amount of $10,000, under some of which the property was afterwards sold and the proceeds applied to the prior or preferred executions. The cause was tried before Pearson, J., who was of opinion, from these facts, that the sheriff was not subject to an amercement for not selling at the instance of the plaintiff, because there were other executions having a priority of lien to an amount much more than all the property of Walker could have been sold for, and if there had been a sale, plaintiff would have been entitled to receive nothing, and so was not damnified, and the defendant might have returned " nulla bona"; and the judge quashed the scire facias, from which judgment the plaintiff appealed.
Boyden for plaintiff.
J. T. Morehead for defendant.
This is a scire facias against the sheriff of Surry County, to obtain execution of a fine of $100, in which he had been amerced nisi for not making due return of a writ of fieri facias at the instance of Buckley against one Walker, returnable to March Term, 1837, of the Superior Court.
The execution in question is the same that is mentioned in the action, determined at the present term, which was brought on the official bond of the defendant by Buckley as relator. (See ante, p. 318.)
Upon the return of the execution of Buckley, and upon the other facts as stated in the case reserved in the other cause, which the parties to the present proceeding admit to be true, the court was of opinion that (324) the sheriff was not subject to the amercement, because there were other executions to an amount much larger than the value of all the property of Walker, which were entitled to a priority over Buckley's; for which reason the sheriff might properly have returned nulla bona. The court, therefore, quashed the scire facias, and Buckley appealed.
The decision was, in our opinion, erroneous, and must be reversed. His Honor, we think, mistook the question in the case. It was not what return the facts, as really existing, would have authorized the sheriff to make, or what damage was done to the plaintiff by the acts of the sheriff, or by his return as made. But the question was singly, whether the return as made was such as a sheriff, according to the law and his duty, ought to make — in other words, whether the sheriff "made due return" of the writ, as by the act of 1777 he is bound to do. If he had returned nulla bona, that would have been "due return." It is a return known to the law, and is a full answer to the precept. The court, therefore, would have received it without regard to its being true or false, and, if false, leave it to the party injured to seek his redress by an action. But the sheriff did not return nulla bona. On the contrary, he returned goods subject to older executions, without saying whether he had sold the property seized, or still had it in his hands, or, if the latter, why he had not sold — whether for want of bidders, or of time, or other sufficient excuse. Such a return is not a "due return," because it does not answer the writ. The law requires the sheriff to sell the property, if he can; and, if he cannot, then, for obvious reasons, it requires him to return what property he has seized, what part he has disposed of, what part remains in his hands, and the reason why he did not sell that also. If not, the sheriff might keep the property in his hands forever. The omission of those material parts of a proper or "due" return is tantamount to the neglect to make a return at all.
The judgment must, therefore, be reversed and judgment here awarding execution for the fine and costs.
PER CURIAM. Judgment accordingly.
Cited: Swain v. Phelps, 125 N.C. 44.
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