Opinion
August Term, 1849.
1. It is no answer for a sheriff to say, when sued for negligence in not executing process against a debtor, that the debtor, even after being imprisoned under a ca. sa., might pay or secure to be paid by assignment other bona fide debts, to the disappointment of the judgment creditor.
2. The true inquiry is, Has the sheriff, by his negligence, deprived the plaintiff of any legal means of securing the payment of his debt? If he has, and the debtor had property which might by due process have been subject to it, the sheriff shall be liable to the amount of the debt which might have been thus secured.
APPEAL from the Superior Court of Law of CATAWBA, at Fall Term, 1848, Moore, J., presiding.
The action is brought in debt on the defendants official bond, as Sheriff of Catawba County. The breach assigned is in not using due diligence to collect a note put into his hands. One Douglass owed the plaintiff $100, due by note, which he put into the hands of the plaintiff on Thursday, together with a warrant and a bail bond, and took from him a receipt for the same. At the same time he informed the defendant that Douglass was in the county, and he wanted him to execute the process forthwith. Douglass had been a citizen of Catawba County, but had removed to Tennessee, taking with him several negroes, and it was proved that he had the same negroes some time after his arrival, and a tract of land and a considerable quantity of stock. When he removed he was reported to be insolvent. When the defendant received the note and warrant, he said he could not execute the process until Saturday, as he had an engagement to sell some property the next day at Newton. On Saturday morning the defendant started, as he (201) alleged, to serve the process, when he was informed that Douglass had started on his return to Tennessee, and that he could not overtake him until he got out of the county. Douglass took with him, when he left, a mare and colt, worth from $75 to $80, which were in his possession when the warrant was put into the defendant's hands. Douglass left on Sunday morning.
Upon the subject of damages his Honor instructed the jury that if the defendant, by using proper diligence, could have subjected the horses to the payment of the debt which Douglass owed the plaintiff, then the latter would be entitled to a verdict for the value of the horses. As to the property in Tennessee, the jury was instructed that the plaintiff had no; way to subject that, directly, to the payment of his debt, but if the defendant had executed the warrant, and had held Douglass to bail, he might have been thereby compelled to go to jail, and before he could have taken the oath of an insolvent debtor, he would have been obliged to make a surrender, in his schedule or otherwise, of the property in Tennessee. But, in considering the value of the chance of the plaintiff's collecting his debt in this way, or in any other, if Douglass had given bail, it was necessary for them to advert to the testimony of Douglass' insolvency, and his right by deed of trust and other legal means to prefer his other creditors.
The verdict was for the plaintiff, and under the instructions of the judge the damages were assessed at six pence. From the judgment upon this verdict the plaintiff appealed, and excepted to the charge upon the subject of damages.
Boyden and Guion for plaintiff.
H. C. Jones and Gaither for defendant.
The plaintiff is not entitled to a new trial unless the court, in its charge, committed some error in law. We think the latter part of the judge's charge is erroneous in two particulars. There was no evidence in the case to support it, and it was incorrect in law. We are to presume that the exception contains all the evidence upon which the charge was bottomed. There was, then, no evidence of the insolvency of Douglass. On the contrary, the case states that at the time the warrant was put into the hands of the defendant he had two horses, which he carried off with him when he left the State, and a plantation and negroes and stock in Tennessee. But the rule laid down, by which the jury were to calculate the plaintiff's chance of securing his debt, has no foundation in law. It is true that a debtor, even after being imprisoned under a ca. sa., may pay other bona fide debts, to the disappointment of his judgment creditor, but that he may do so is no evidence that he will do so, nor is it any answer in the mouth of the sheriff, when sued for negligence in not executing a writ. 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 the law. The true inquiry is, Has the defendant, by his negligence, deprived the plaintiff of any legal means of securing the payment of his debt? If he has, and the debtor had property which might, by due process, have been subject to it, he shall answer to the full amount of the debt; and his Honor in his charge very fully pointed out to the jury how that might have been done, if the process had been served. Another objection to the part of the charge we are considering is that there is no (203) evidence that Douglass owed one cent but what he owed to this plaintiff. There was no error in refusing the charge required. If the defendant could not, by any diligence, have collected the debt from Douglass, then the plaintiff had suffered no actual loss, and the defendant was liable only to nominal damages.
PER CURIAM. Judgment reversed, and a venire de novo awarded.
Cited: Morgan v. Horne, 44 N.C. 26; Murphy v. Troutman, 50 N.C. 381; Hearne v. Parker, 52 N.C. 152; Jenkins v. Troutman, ib., 174.