Governor ex rel. M'Rae's Admr. v. Evans, 18 N.C. 243, 1 Dev. & Bat. 243 (1835)

June 1835 · Supreme Court of North Carolina

18 N.C. 243, 1 Dev. & Bat. 243

The Governor, upon the relation of PHILIP M'RAE’S Admr. v. JOSIAH EVANS.

If the sheriff forbears, at the request of the plaintiff, to collect money on an execution, he is not responsible therefor; but if he forbears of his own accord, he will be liable for the damages the plaintiff may sustain thereby. If the whole amount of the execution is lost by the sheriff’s negligence, he will be answerable for that amount; but if the money can still be collected from the defendant in the execution, (a fact which it will be for the sheriff to prove,) the sheriff will be liable only for the damage which the plaintiff has sustained by the delay.

The sheriff is liable for the mere not returning an execution, but the damages therefor, will be only nominal.

Where the general doctrines and rules contained in a Judge’s charge are correct, and there appears no special circumstances requiring a modification of them, and the party excepting has called for no special instructions which have been denied, an exception to the charge cannot be sustained.

After the new trial granted in this case at June Term, 1830, (see 2 Dev. Rep. 383,) it was again tried at Cumberland, on the Spring Circuit of 1834, before his Honor Judge Sjeawell, when it appeared to be an action brought against the surety of the coroner, upon his official bond. The breaches assigned were, that on an execution against the sheriff at the instance of the relator’s intestate, the coroner had failed to collect the money, and to return the execution. Evidence was introduced' on the part of the defendant, to show that the plaintiff in that execution, directed the coroner to forbear making the money; and also to prove that no execution afterwards issued for several subsequent terms, and that during that time, the defendant in the execution was of sufficient ability to pay the amount of the execution, if the plaintiff had sued it out. His Honor, in his directions to the jury, informed them, “ that if the coroner was directed by the plaintiff in the execution, not to make the money, the coroner was in no default for his omission to do so; but if the plaintiff did not authorise the coroner to forbear making the money, and he nevertheless did forbear, that the plaintiff wmuld then be entitled to recover damages for the default, and that the amount of the damages, would depend upon the loss the plaintiff sustained. That if he thereby lost his debt, he would be entitled to recover the whole amount; but if it was only postponed, and he might have recovered it, if he had afterwards taken out another execution, then he was only entitled to recover such damage as was occasioned by the delay. That how the fact was in regard to the reason why the money was not made, whether by the direction of the plaintiff, or the mere indulgence of the coroner, was a fact for them to decide, and they would find accordingly. That as to the other breach assigned, it was the duty of the coroner to return the execution to the Court from which it issued, but that inasmuch as it was in the power of the plaintiff, to have ruled the coroner to return the execution, if such return was necessary, before the Court would allow a new execution, and upon that return to have obtained a new execution, the damage for such omission would be. but nominal.”

His Honor further instructed the jury : “ That it was the duty of the defendant to show the sufficiency of the defendant in the execution to pay, if the plaintiff had taken out new executions, and that it should be fully shown.”. The jury found for the plaintiff, and assessed nominal damages. The plaintiff moved to have the verdict set aside, and a new trial granted on account of misdirection, which being refused, he appealed.

The case was submitted without argument by W. II. Haywood, for the plaintiff, and Henry, for the defendant.

Gaston, Judge.

— This case comes before the Court on the appeal of the plaintiff, and has been • submitted to us without argument. On examining the record, we perceive that the plaintiff obtained a verdict but for nominal damages, and moved to have the verdict set aside, and a new trial awarded, because of misdirection of the Judge in his charge to the jury. This motion was refused, and its rejection is the only error assigned. We have examined that charge, and we do not perceive any instruction in it, of which the plaintiff has a right to complain. The general doctrine laid down in the charge is correct, and the rules recommended to the jury, as guides to their discretion in the regulation of damages, as general rules, appear to us unexceptionable. If more specific instructions were desired, they should have been prayed for; and the refusal of the Court to give them, made the subject of distinct exception. If there were special circumstances in the case, requiring any modification of the general doctrine, or of the general rules for estimating the damages; these should have been set forth, for we cannot presume, their, existence. As the alleged misdirection is not seen, we are of opinion, that the Court below, did not err in refusing the new trial.

Per Curiam. Judgment affirmed.