Opinion
(December Term, 1859.)
1. Where a sheriff had a writ against a resident of another State, who was known by the sheriff to be in his county on a temporary visit, and such sheriff was also informed by one of whom he inquired, that the person sought would be at a particular place, near the county line, on a certain day mentioned, on his way out of the State, and he failed to be present on the day mentioned, when, if he had been there, he might have arrested the defendant, and showed no reasons for not going there, it was Held to be negligence.
2. Where a sheriff is shown to be guilty of negligence in failing to serve a writ, the onus of showing that the defendant in the writ was insolvent devolves upon him.
3. In a case where the question was as to the ability of the debtor in a capias ad respondendum to meet the debt, if he had been arrested, evidence of his being indebted to others was held to be immaterial and irrelevant.
DEBT, on a sheriff's bond, tried before Heath, J., at the last Fall Term of ROWAN.
Fleming for plaintiffs.
D. G. Fowle, Osborne, and Sharpe for defendants.
The execution of this bond by the defendant Troutman, as the sheriff of Iredell, and the other defendants as sureties, was proved by the subscribing witness. The breach assigned was the failure on the part of Troutman to arrest one Julius W. Houston on a capias ad respondendum. The plaintiffs proved that prior to September, 1855, and up to the time of the issuing the writ in this cause, said Houston was indebted to them in the sum of $690.84, which is not yet paid. That on 4 September, 1855, a writ of capias ad respondendum against said Houston and one Randolph for the debt aforesaid was placed in said Troutman's hands. Randolph was a resident of Rowan, and was at that time insolvent, and has so continued ever since, possessing no goods or effects out of which this debt could be made, either in whole or in part. That Houston was then not a resident of this State; was raised in Iredell, but removed in 1851 or 1852 from Rowan to California. That Houston, at the time of the writ aforesaid came to the sheriff's hands, was on a visit to his relations and friends in Iredell County.
That defendant Troutman, between the 1st and 15th of September, went to a witness, one Roseborough, and said he did not (170) know Houston, and asked where he was to be found. Roseborough told him he understood he was at the house of his (Houston's) brother-in-law, who lived in Iredell, about 2 1/2 miles from Statesville, where this conversation occurred. That Troutman lived about 7 miles from Statesville. The same witness further proved that early in the morning of the Monday on which Houston left the State, about 1 October, 1855, he saw said Houston in a carriage with his mother, passing through Statesville towards Charlotte; that after they had passed, Troutman came into witness's store and inquired for Houston. Witness told him that he had passed in the carriage with his mother, and that Troutman said from description he must have met Houston 2 1/2 miles from Statesville, and started away. On cross-examination witness said that Houston, when he left the State in 1851 or 1852, was generally reputed to be insolvent and without property.
The plaintiff's proved by Mrs. Thom that she is an aunt of Houston; that she lived in Iredell County, about 20 miles from Statesville, and within a mile of the Mecklenburg line; that Troutman came to her house on Wednesday or Thursday before Houston left the State, and made inquiry for him; that she told him she had seen Houston, and expected him at her house on the following Friday, Saturday, or Monday, on his way to Alabama, though he might not come; that Houston came to her house on the next Monday in a carriage with his mother, whom he left at her house, took a cup of coffee, and left soon after, about 12 o'clock midday, in the direction of Charlotte, there to take the cars for Alabama; since which time she had not seen him. She further swore that defendant Troutman was not at her house on either of these days, nor had she any recollection that his brother was there on these days. On cross-examination, she said that Houston stayed at no one particular place in Iredell; while there, he was mostly at his brother's house aforesaid — sometimes at one friend's or relation's house, sometimes at another's, and that he visited Catawba, (171) Mecklenburg, and Rowan. The return of the sheriff was, "Not to be found." The plaintiffs then read the depositions of Julius W. Houston and Dr. Houston. J. W. Houston, in his deposition, stated that he was in Iredell County, North Carolina, in September and October, 1855; that he remained there some five or six weeks; that he then left for Alabama, and has not been back since. That while in North Carolina he was possessed of no property, and had no money or effects of any kind, either in his own hands or hands of any one else; that no one was indebted to him in this State at the time alluded to, or since. He further stated that he had money and effects accumulated by him in California at the time he was in North Carolina.
Dr. Houston, in his deposition, stated that J. W. Houston was at his house in Iredell County, N.C. for some two or three weeks during the months of August and September, 1855, and that he left for Alabama some time about 1 October, the same year.
The defendant introduced on Troutman, brother of the defendant Troutman, who swore that on Monday morning about the last of September or the first of October, 1855, the defendant Troutman came to witness's house, about 2 1/2 miles from Statesville, on the road towards Mrs. Thom's; that he said he was going to arrest J. W. Houston, and desired him to go along with him; that witness started with him; that the road to Mrs. Thom's forked about a mile from his house, both fork's leading to Mrs. Thom's; that witness took one fork, and defendant Troutman the other; that defendant Troutman did not tell him that Houston was ahead, or that he expected to find him at Mrs. Thom's, or that she had told him anything about Houston or his whereabouts; that after they separated at the fork, witness rode on at ordinary speed and reached Mrs. Thom's at 2 or 3 o'clock in the evening, inquired for Houston, learned that he had left; turned back and met defendant Troutman near Mrs. Thom's, and they returned to his house together; that defendant Troutman lived between Statesville and Mrs. Thom's, and that in going home from Statesville would travel (172) that road. The defendant offered to prove that Houston was largely indebted to different persons in Iredell and Rowan. The plaintiffs objected that this evidence of debt was irrelevant, and that the evidences of debt, which were notes and bonds, were not produced. The objection was sustained, and the evidence ruled out. Defendants excepted. The plaintiffs then proved that Houston had many wealthy relations and friends in Iredell County, at the issuing of the writ and the return thereof. The defendants insisted that the deposition of Houston, in connection with the evidence of his insolvency when he left the State in 1851 or 1852, showed he was insolvent in 1855, and had no effects or property from which plaintiffs' debt could have been made, in whole or in part, and that plaintiff was not entitled to recover anything, or, if entitled to recover anything, the recovery must be limited to nominal damages.
The judge charged the jury that, taking all the evidence into consideration, if believed, there was negligence, and that plaintiffs were entitled to their verdict; that as the deposition of Julius W. Houston showed, if believed, and that was a question for them, that he had considerable moneys and effects in California, then the plaintiffs were entitled to indemnity for loss of their debt, and ought to recover the full amount thereof, unless the defendant had shown that the full amount could not have been realized therefrom. But if defendant had shown that the full amount could not have been realized out of those moneys and effects, then the plaintiffs were entitled to recover damages an amount equal to what the jury were satisfied could have been realized from Houston had the sheriff arrested him and held him to bail, or imprisoned him under the capias ad respondendum.
There was a verdict for the full amount of the debt in favor of the plaintiffs. Judgment. Appeal by defendants.
The testimony in this case is not materially variant from that given on the trial of Murphy v. Troutman, 50 N.C. 379. The principal defendant, Henry Troutman, was unquestionably guilty of negligence in not executing the writ of capias ad respondendum, which, as the sheriff of the county of Iredell, he had in his hands against J. W. Houston. So far from making a diligent effort to arrest the debtor, as the exigency of the writ demanded and as his duty required, he seems rather to have avoided a meeting with him, and to have contented himself with making a few inquiries about him, and, at last, an exceedingly slow pursuit after him. The presiding judge was, therefore, fully justified in his instruction to the jury that the defendant was guilty of neglect in failing to make arrest. The charge of his Honor was, in our opinion, equally correct on the question of damages. "As the plaintiff had put the defendant in the wrong, he was liable for such damages as had been sustained thereby, which prima facie was the amount of the debt that was lost, and it was for the defendant to mitigate the damages by proving that the effect of his wrongful act was not so great, because the debtor, who had been suffered to leave the State, had not the ability to pay the debt, and his arrest would not have enabled the plaintiff to realize the amount, or any part thereof; or, if a part only could have been thereby realized, then to limit his liability to that amount." This was the doctrine held in Murphy v. Troutman, supra, and although the English cases on the subject seem to be in a state of perplexing uncertainty, the current of decisions in the different states of the Union supports the conclusion at which we have arrived. See Sedgwick Dam., 510 et seq., and 2 Hilliard on Torts, 340 et seq. The testimony offered by the defendants to show that J. W. Houston was largely indebted by notes and bonds to different persons in the counties of Iredell and Rowan was properly rejected, because it was immaterial and irrelevant. The object of the testimony was, we are told, to lessen the amount of damages to which the plaintiff, would have been otherwise (174) entitled, because, it is argued, the debtor would, if he had been arrested, probably have assigned his property to secure the payment of those debts, and would thereby have diminished the plaintiff's chance to get theirs. This argument is fully answered by what was said by the Court in the somewhat similar case of Sherrill v. Shuford, 32 N.C. 200: "If it can shield the sheriff in this case from answering in substantial damages, it will answer in any other where the defendant may owe more than he can pay. In all such cases the officer may keep the writ in his pocket and, when sued, turn upon the plaintiff and say, `You have suffered no injury; if I had executed the writ and taken bail, the defendant might have paid away all his property in discharge of other debts, and you would have got nothing.' This cannot be law. The true inquiry is, Has the defendant, by his negligence deprived, the plaintiff of any legal means of securing the payment of this debt? If he has, and the debtor had property which might, by due process, have been subjected to it, he shall answer to the full amount of the debt."
PER CURIAM. No error.