Governor ex rel. Lanning v. Harrison, 20 N.C. 461, 3 Dev. & Bat. 461 (1839)

Dec. 1839 · Supreme Court of North Carolina

20 N.C. 461, 3 Dev. & Bat. 461

THE GOVERNOR to the use of WILLIAM LANNING vs. NATHANIEL HARRISON.

Upon a schedule filed by one talren under a ca sa, and desirous to avail himself of the benefit of the act for the relief of insolvent debtors, it is not competent for the court to order, nor for the clerk to issue a writ to the sheriff commanding him to sell the scheduled property, or so much thereof, as will satisfy tho plaintiff’s debt and costs, and have the same ready at the next term, to render “to the court, or to the parties entitled to receive the same;” and it is consequently no breach of the sheriff’s bond for him to fail or neglect executing such writ.

The property and debts contained in such schedule vest in the sheriff, as assignee to sell, collect, and pay into court for the benefit of all the creditors; and the proper course to enforce the performance of the sheriff’s duties in relation thereto, is to have a rule of court on the sheriff to sell the property and collect the debts so assigned, and bring the money into court, and to attach him. for a contempt, if the rule be not complied with.

A breach assigned “for a general misfeasauce in office” in a suit on a sheriff’s bond, is too general and broad, and the court will not permit any evidence to be given upon it.

This was an action of Debt upon the bond given by the defendant, as Sheriff of the County of Buncombe. The bond was in the usual form, and the breaches thereof assigned by the plaintiff were; First, that the sheriff had collected and failed to pay over the amount of a judgment in favour of the plaintiff against one Thomas E. Justice, by the sale of property surrendered in a schedule filed by said Justice, after he had been arrested on a ca sa. Secondly, that the sheriff neg- and refused to make the plaintiff’s judgment out of the property surrendered by the said Justice, and to account for it. Thirdly, “ for a general misfeasance in office.”

Dec. 1839

Upon the trial, at Buncombe, on the fall circuit of 1838, before his honor Judge Dick, the case was as follows: The plaintiff had obtained a judgment in the County Court of Buncombe against Thomas E. Justice, and issued a ca. sa. returnable to July term, 1833. The sheriff arrested Justice on the 22nd of May, 1833, and took bond and security under the insolvent debtor’s act, for his appearance at the said July term, 1833. On the 19th of June ensuing his arrest, Justice filed in the clerk’s office a schedule of all his property; and at the following term, in July, 1833, swore to the truth of the schedule, took the insolvent’s oath, and was discharged under the act for the relief of insolvent debtors. But after Justice had filed his schedule in the clerk’s office, the deputy-sheriff and a constable levied divers executions, issued by a justice of the peace against him, upon the property mentioned in the said schedule. A writ issued from July term, 1833, directed to the sheriff, which, after reciting that a schedule had been made by Justice,’in consequence of a ca. sa. issued against him by Lanning, for the sum of $74:58 cents debt, and 35 cents cost, returnable to July term, 1838, and reciting the property contained in the schedule, concluded in these words;

“ You are commanded to sell the same according to law, or so much thereof as will make a sum sufficient to satisfy the foregoing several sums of money, and other endorsed cost and your fees for so doing; and the monies so had, have you before our next Court of Pleas and Quarter Sessions on the fourth Monday in August next, then and there to render the same to the said Court, or to the parties entitled to receive the same.”

The sheriff, by his said deputy, sold the scheduled property; and among the rest the equity of redemption in a slave .which Justice had before mortgaged. But, instead of bringing the money into Court, he paid it over to the owners of the executions aforesaid, which had been issued by a justice of the peace; and for costs. His Honor charged the jury that the plaintiff was entitled to recover, on the first breach assigned, the money raised by the sale of the equitable interest of the slave held in mortgage. He said that the officers who held the justice’s execution could not levy on the equity of redemption in personal property. The plaintiff, under this charge, had a verdict and judgment for the full amount of his demand, and the defendant appealed.

No counsel appeared for either party in this Court.

Daniel, Judge,

after stating the case as above, proceeded as follows: When a debtor is in custody, or who is arrested on a ca. sa. wishes to have the benefit of the insolvent act, he shall, for the benefit of his creditors, file a schedule of his property with the Clerk of the Court, at least ten days before the sitting of the Court at which he proposes to avail himself of the benefit. 1 Rev. Stat. ch. 58, sec. 12. All the property and debts contained in such schedule shall vest in the sheriff of the county where such schedule shall be filed. The sheriff shall sell the property and collect the debts, and upon oath pay the same into Court where the schedule Was filed, to be distributed. Sec. 14. The sheriff'thus becomes the legal assignee of all the property, debts and effects of the insolvent, for the purpose of collection and paying into Court. It is unnecessary now to enquire whether, when the insolvent is discharged, the sheriff’s title as assignee begins upon, and relates back to, the day when the insolvent filed his schedule in the clerk’s office. When the funds are collected by the sheriff and paid into Court, the Court-shall appoint two commissioners to examine the claims of all and singular the creditors, as well those at whose suit the insolvent was committed as of all others. And they shall make distribution among each and every of the creditors who shall prove their debts, in proportion to their respective demands. And the clerk shall pay such monies into the hands of the two commissioners, for the purposes aforesaid; sec. 15. Thus it appears that an adjudication or order that the sheriff should sell the property in the schedule to satisfy the plaintiff’s demand, would have been in direct hostility to the law — for the plaintiff had no other interest in that property than such as was common to all the creditors of the insolvent. No such adjudication was made — and the writ issued by the clerk to enforce such supposed adjudication, was wholly without authority. We are at a loss, therefore, to see how it was possible to maintain either of the two breaches assigned, either that the sheriff had collected a judgment of the plaintiff, or had neglected to collect such a judgment. The true course of proceeding would have been to have a rale of Court on the sheriff to sell the property so assigned, and bring the money into Court, and to attach him, if the rule were not complied with.

As to the breach assigned, in such general and broad terms, as the third breach in this case is, the Court could not receive any evidence. The defendant could not know how to defend himself. However, the charge of the Judge was applicable only to the first breach assigned. For the reasons given, we think it was erroneous, and therefore that the judgment must be reversed and a new trial awarded.

Per Curiam. Judgment reversed.