Governor ex rel. Holliday v. Eastwood, 12 N.C. 157, 1 Dev. 157 (1827)

June 1827 · Supreme Court of North Carolina

12 N.C. 157, 1 Dev. 157

The Governor to the use of William Holliday and another, executors of Thomas Holliday v. James Eastwood and others,

From Greene.

A side under a venditioni exponas of lands, or with or without a vendi-tioni, of goods levied on under :< fi. fa. is an act done in execution of the authority given by the writ under which the I. vy was made. Therefore, when such a sale was made in 1820, under a levy made before, it vv is held, that the Sheriff’s refusal to pay over the money raised by the sale, was no breach of the condition of his official bond for 1820.

A venditioni can issue only to the Sheriff who made the levy.

James Eastwood, was Sheriff of Greene, from May, 1819 until May, 1820 ; at which time lie was reappointed and ga»e with the other Defendants, his sureties, the bond on which this anion is bought, dated May 1820, ami conditioned for the faithful discharge of his duties.

On the trial, the evidence was that the executors of Holliday t recovered three several judgments against one Brand, of which ihc whole amount was 8300, on which f. fa’s issued, tested of February and returnable/ to •' May 1820, on which Eastwood, the Sheriff, returned that he had levied upon a tract of land and several negroes, which remained unsold for want of bidders.

On one of these returns, a venditioni exponas issued, returnable to August, 1820, on which the Sheriff returned that no sale was made for want of bidders. It did not appear in evidence, that any other executions issued upon these judgments or either of them, but on the 27th Fcbiuary, 1821. Eastwood sold theJand-levied upon, for the sum of fifteen hundred dollars, and the negroes for a libe sum, and a small balance remaining in his hands of the proceeds of the sale, after satisfying the judgments as well as other demands upon Brand, Eastwood, came to a settlement and accounted with him therefor.

The. above judgments not being paid by the Sheriff, the question was whether the Plaintiff had shown a breach for which the Defendants were liable upon the bond of 1820.

His honor Judge Daniex., who presided, instructed the jury, that if no other executions issued than those mentioned above, the Plaintiff liad shown no breach, that it was incumbent on the Plaintiff, if any other execution did issue, to produce evidence thereof; and further, that if other executions had issued, founded on the levy returned to May 1820, as writs of venditioni 'exponas, and under tlu'se sale was made, such sale related to the levy, and such new writ only authorized or required the completion of the former execution, of which the levy w as the commencement, and therefore no breach was shown of the condition of (he present bond.

Under these directions, the jury found for the Defendants, and a rule for a new trial being discharged and judgment given, the Plaintiffs appealed.

No counsel appearing in this Court for the appellant, Gaston on the other side, submitted the case without ar-gu incut,

Haui, Judge.

T think the charge of the Judge to the jury in the Superior Court was correct. The question submitted to the Court is somewhat confused, because Eastwood was Sheriff both in 1819 and 1820 — let us suppose that some other person was Sheriff in 1819, and that the executions of jitri facias issued into his hands, and were returned, no sale for want of bidders, to May Court, 1820, at which Court, Eastwood was appointed Sheriff. From that Court, the Plaintiff in the executions, thought proper to issue writs of venditioni exponas, it is proper that these writs should issue, to tfie first Sheriff who had levied on the property, because an execution is said to be an entire thing, and he who begins it must end it, (1 Hay. 415—Gwillhn’s Bacon, Sheriff J. cases therein cited) consequently it would be the duty of the first Sheriff, not of Eastwood, to self the property as was done, in February 1821. The power of finally selling the property, was a continuation of the power which lie bad to levy upon it. But it seems that the same person, Eastwood, was Sheriff in 1819 and 1820, then it follows that as he levied upon the property by virtue, of his appointment in 1819, and sold it, and received the proceeds of the sale under a continuation of a power derived from the same appointment, that lie did not in any respect act under the authority of his appointment in 1820 — that lie might and ought to have sold the property in 1821 although he fiad not been appointed Sheriff in 1821. The consequence is that his failure to pay the money which is alledged as a breach, can be no breach of the bond given at May Court, 1820. X therefore think, the rule for a new trial should be discharged.

Fes curiam. — Judgment affirmed.