State ex rel. Sutton v. Allison, 47 N.C. 339, 2 Jones 339 (1855)

Aug. 1855 · Supreme Court of North Carolina

47 N.C. 339, 2 Jones 339

STATE to the use of A. C. SUTTON vs. J. B. ALLISON et al.

A Bheriff by his return that he has levied upon the property of the defendant in a fi. fa. is estopped to deny the truth of such return. j

A sheriff can, and when necessary should summon the power of the county to aid in the execution of final process.

AotioN of debt upon the official bond of the sheriff of Haywood, tried before his Honor Judge PeesoN, at the last Pall Term of Macon Superior Court.

The breach assigned in the declaration was the failure of Allison, the sheriff, to collect a debt of the plaintiff. The plaintiff had in due time placed in the hands of Allison a fieri faeias in his favor, against one Hunter, which was returned by the defendant, that he had “ levied upon a horse and wagon.” The defendant proved by a witness, that the property was not present when the entry was made, but was then in the county of Macon: that Hunter had assented to the levy and gave the sheriff a forth-coming bond, for the delivery of the property on the day of the sale, which was forfeited.

The defendant’s counsel insisted, that a levy, made under these circumstances, did not vest the property in the sheriff, and did not make him liable to the plaintiff for its value. But the Court held the return was conclusive against the sheriff as to the levy. To which the defendants excepted.

It was in evidence, that Allison and Hunter and seven other persons, were present together in the county of Haywood while this fi. fa. was in the hands of the defendant, Allison, and that Hunter had with him there, horses and other property, liable to execution: but there was evidence tending to show that the sheriff could not, alone, have seized the property and taken it out of the possession of Hunter, without endangering his life or exposing himself to great personal harm.

The Court charged that Allison had a right, and it was his duty, to summon the by-standers to assist him, and if with their assistance he could have seized the property, without endangering his life or incurring the risk of great bodily harm, he was bound to do so, and his failure to summon the bystanders was a want of diligence, which made him liable to the plaintiff. To which the defendant again excepted. Yer-dict for the plaintiff. Judgment and appeal to this Court.

J. IF. Woodfin and Baxter, for the plaintiff.

iY IF. Woodjm and Gaither, for the defendant.

PbaesoN, J.

We concur with his Honor, for the reasons given by him, upon both the questions presented in the case. The legal effect of a return, made by the sheriff “ levied upon property of the defendant,” is to preclude the plaintiff from taking any further action, because the judgment is satisfied by the levy, unless the debtor afterwards has the use and benefit of the property: such being its legal effect, and being a solemn official act made on oath, it amounts to an estoppel which, as Lord Corns expresses it, “ shutteth a man’s mouth from speaking the truth.” An officer may sometimes obtain leave to amend, or to strike out the return, and make another, as when the property levied on turns out not to belong to the debtor, and is judicially ascertained to be the property of a third person. But while the return stands, and affects the plaintiff as stated above, it is proper that the sheriff shall not be heard to say, or to prove, that, in fact, he did not do what by his return he said he had'done. In this point of view, the fact that the sheriff holds a forthcoming bond, to which ho may resort for an indemnity, has some force : should he sue on the bond, he, in his turn, will have the benefit of the doctrine of estoppel, and may “ shut the month” of the obligors by their own deed, and prevent them from saying, “ there was no levy, inasmuch as the property was not in the sheriff’s county, and could not be levied on.” They are concluded as to this matter by their deed.

The authorities cited upon the second point establish, that' a sheriff is not required on mesne process, in a civil suit, i. e., a capias ad respondendtim, to summon the posse comitatus, or call out the power of the county. The reason is, that as the party is allowed to give bail, it is presumed the officer will have no occasion for the aid of the power of the county: for this reason “rescue” is a sufficient return to mesne process. Upon mesne process in criminal proceedings, and upon final process in civil suits, the law is otherwise ; for the same reasons do not apply. State v. Armfield, 2 Hawks 246, decides that' upon a fi. fa. the officer has no right to force open an outside door of the defendant’s dwelling house : this is put on the ground that it is his castle; and the decision in no wise tends to prove, that upon a fi. fa. the sheriff is not required, if it becomes necessary, to call out the power of his county, as in other cases of “ final process.” Upon a ca. sa. a sheriff has no right to force open an outside door of the defendant’s dwelling house, but he is required, if the defendant resists, to call out force enough to arrest him.

Pee OueiaM. Judgment affirmed.