Parks v. Alexander, 29 N.C. 414, 7 Ired. 414 (1847)

Aug. 1847 · Supreme Court of North Carolina

29 N.C. 414, 7 Ired. 414

DAVID PARKS vs. THOMAS N. ALEXANDER & AL.

A Bheriff has no right to return nulla Iona on an execution, without making an effort to find property at the residence of the defendant in the execution, or making any demand of payment or enquiry for property..

A mere general report that the debtor has no property will not justify such a return, if the debtor in fact has property, subject to be levied on.

Appeal from the Superior Court of Law of Mecklenburg County, at a Special Term in November 1846, his Honor Judge Pearson presiding.

This was an action of debt upon the defendants sheriff’s bond for the year 1840. The breach assigned was a failure to collect a debt due by one Johnson, which bad been placed in his hands for collection.

The plaintiff proved, that, in May 18'40, he placed in the defendant’s hands, for collection, a note due by the said Johnson for about $30. The plaintiff called one McGilvery, who swore, that, during the summer and fall of 1840, and until some time in 1841, Johnson h.ad in his possession, using and claiming as his own, a Carryall and Buggy, worth over $50; and that in 1841 the Carryall and Buggy were sold by a constable to satisfy another debt of Johnson’s. The defendant called several witnesses, who swore, that, in 1838, Johnson was sold out, and from that time until his death in 1842 was reputed and considered to be insolvent. Johnson, as well as the plaintiff and defendant, all lived in the town of Charlotte. None of these witnesses had ever been to the house of Johnson to make enquiry after property. Johnson was an intemperate man, a Saddler'and Harness-maker by trade, and worked in a shop owned by one Houston, and was generally supposed to have no property and to be entirely insolvent. The defendant’s counsel insisted, that when a man was generally reputed to be insolvent, an officer could notbe made liable for failing to collect a debt, unless the plaintiff shewed him property, or proved that the officer knew that the debtor had property. The Court refused so to instruct the jury, but told them, that, if they believed the testimony of the witness, McGilvery, the defendant had not used due diligence and was liable in damages to the plaintiff for his neglect; that where a debtor had property in his possession, it was the duty of the officer to make enquiry, notwithstanding a general report as to the debtor’s insolvency, and, if it turned out that the debtor was in fact the owner of property liable to execution, it was no excuse for the officer, and he had no right to say, that it was the plaintiff’s business to make the inquiry and inform him of the fact.

The jury found a verdict in favor of the plaintiff'. A rule for a new trial for misdirection was discharged. There was judgment for the plaintiff and the defendants appealed.

J. H. Wilson» for the plaintiff.

Alexander, for the defendants.

Daniel, J.

It was the duty of the sheriff, after he received the note for collection, to have had a judgment rendered on it, and an execution issued against Johnson in a reasonable time. And then it was his duty to have gone to the house of Johnson, in search of property to levy on. If the sheriff had pursued this course, he must have found property, worth as much as the amount of the execution. He had no right to return nulla bona, without making any effort to find property at the residence of the defendant in the execution, or making any demad of payment or enquiry for p'roperty. The general report, that Johnson was insolvent, did not excuse the sheriff in his negligence. We may be very certain, that, if the debt had been the sheriff’s own, he would have made inquiries, which would have led to the seizure and sale of the debtor’s property. We think the judgment must be affirmed.

Per Curiam. Judgment affirmed.