State ex rel. Howell v. Edwards, 32 N.C. 242, 10 Ired. 242 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 242, 10 Ired. 242

THE STATE TO THE USE OF N. G. HOWELL vs. P. W. EDWARDS & AL.

The reputation of the-insolvency of a defendant in an execution will not excuse the officer, who has it, from liability for neglect of duly in not endeavoring to ascertain for himself, whether there is property or not, subject to the execution.

The case of Partees v. Alexander, 7 Ire. 412 cited and approved.

Appeal from the Superior Court of Law of Macon County, at the Spring Term, 1849, his Honor Judge Bailey presiding.

The action is on the bond given by the defendant Edwards, as a constable in Haywood County; and the breach was, for not diligently endeavoring to collect the sum due on a justice’s judgment against Thomas No» land, which was put into his hands by the relator for collection. On the part of the relator evidence was given, that Noland lived in the county and was in possession of, and used as his own, two horses, some cattle, corn and other things. On the part of the defendants, evidence was given, that one Duncan had a mortgage on some of the effects in Noland’s possession, and that Noland lived in a remote part of the county from Edwards, and was generally reputed to be insolvent, and that he frequently told, officers that he had no property of his own. The relator then gave evidence that Duncan’s mortgage had been satisfied, and that, while Edwards had the relator’s judgment in his hands, Duncan informed him, Edwards, that his mortgage was discharged, and that the goods were No-land!s. The Court instructed the jury, that if Noland had no property subject to execution* they ought to find for the defendant, but that if he had property, liable for the debt, the constable would not be excused for not en» deavoring to collect it by the reputation of Noland’s insolvency, but he ought to shew likewise, that he had endeavored to obtain satisfaction by taking out execution and securing the property if he could, or going to the de btor’s house, or making enquiries for the property, for that purpose. Verdict and judgment for the plain» tiff, and the defendants appealed.

Edney and Baxter, for the plaintiff.

J. W, Woodfin, N. W. Woodfin and Fitzgerald, for the defendants.

Ruffin, C. J.

If the constable would be liable for a false return on these facts, he must likewise be Rabie under the Statute, for want of due diligence in not taking out an execution, or otherwise making the money, The Court holds clearly, that he would have been liable for returning nulla bona in this case, if a fieri facias had been in his hands. The return would have been false in point of fact, as Noland had property. Then, he was not to wait for a communication from the creditor, as to the person or residence of the debtor, or the particular property in his possession. If he needed information on those points, it was his duty to make énquiry before he ventured on a return, false in fact. Parkes v. Alexander 7 Ire. 412. Dyke v. Duke, 4 Bing. N. C. 197. But here it is not pretended, that the constable did not know the debtor and his residence, and there was evidence that he had precise notice from the mortgagee of some of the effects, that his claim was discharged and that the property then belonged to Noland, and, of course, was subject to execution. No reputation of insolvency of the debt- or could excuse such indifference to the interests of the creditor and gross neglect of duty.

Pbr Curiam

Judgment affirmed.