State ex rel. Hearn v. Parker, 52 N.C. 150, 7 Jones 150 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 150, 7 Jones 150

State on the relation of WILLIAM HEARN v. JAMES H. PARKER, et. al.

A delay to execute a fi.fa. for eight days, where the officer lived within ten miles of the debtor, was held to be such a want of diligence as would subject him in damages to the creditor.

A constable is bound to the same degree of diligence, in the execution of process, where ho takes it out himself, as where it is taken out by theoredilor or his agent, and put into his hands.

Action of debt upon a constable bond, tried before Shepherd, J., at the last Fall Term o-f Edgecombe Superior Court.

The facts of the case were as follows: During the official year, for which the defendants had given bond for the faithful discharge by Parker, of his office, to wit, 17th of January* 1857, a claim, within the jurisdiction of a justice of the peace* was put into the hands of Parker, but whether any special instructions were given him, was left doubtful by the evidence, lie proceeded to take .jndgmeut, and took out a fieri facias, hnL took no step to enforce it at any time. It was proved that the general understanding was, that the debtors were insolvent, but that from the time of taking out execution, 17th to the 26th of the month, the debtors were in possession of a steam saw-mill, in his county, which was worth $800, and which, during that time, was unencumbered; that on the 24th of the month, they made an assignment of the saw-mill and their other property, which was registered' on the 26th. The constable lived, ten miles from the debtors, but was the officer who generally did the business of this district. The counsel for the plaintiff asked the Court to charge the jury that if they believed the facts to be as above stated, the plaintiff was entitled to recover.

His Honor declined so to charge, but told the jury if they were satisfied that certain instructions were given the officer for him to proceed with urgency, in the collection of the claim, then they should find for the plaintiff; otherwise, to find for the defendants. The plaintiff excepted. Yerdict for defendant. Judgment and appeal.

No counsel appeared for the plaintiff in this Court.

Oonigland and Batchelor, for defendants.

Manly, J.

After the statute of 1818, Rev. Code, ch. 24, sec. 7, charging the constable officially with the collection of claims, it was held to be its object only to recognise an agency in the officer for that purpose, and to make the official bond a security for its fulfilment. It has never been supposed to attach to him, in this new field of official duty, any higher degree of responsibility than would attach to any other agent undertaking the same duties for compensation. The degree of diligence, as a collecting agent, to which he has been uniformly held, is ordinary diligence, only.

But ibis, neither before the statute.nor since, was the grade of diligence to which an officer, with process, has been held. It is his duty to execute the precepts with a dispatch and care quicker and greater, than ordinary — with that degree which would be used, under similar circumstances, by a man of the strictest diligence and prudence.

"We do not perceive any reason for a difference between the cases of an officer with process put into his hands by the plaintiff, or put into his hands by an agent, or sued out by the officer himself, acting in that behalf as an agent. In the absence of any specific instructions as to the collection, they stand upon the same ground, and the officer is bound to the same grade of diligence in the execution. In the case before us, upon the finding of the jury, we assume that no specific instructions were given in respect to the collection of the debt, and the case then presents the point whether an officer, who has a, fieri facias in his hands against a debtor, ten miles from the officer’s residence, and wrho delays execution from the'18th to the 26th of January, is guilty of culpable delay. We differ in opinion from his Honor below, and think, so long a delay is not in accordance with the strictest diligence which is the grade of his'duty. And, therefore, the persons injured may have an action on the bond to recover the damage.

Indulgence to a debtor, is confined to the creditor, and to those impediments which the law has thrown around the former to prevent oppression; Shuford v. Sherrill, 10 Ired. Rep. 200; Murphy v. Troutman, 5 Jones’ Rep. 379.

Let the judgment of the Superior Court be reversed, and a venire de novo awarded.

Per Curiam,

Judgment reversed.