#### The Governor, to the use of Pratt, Mott and Williams, v. Carter and others.

> From Hertford.

When a sheriff levies on realty before personalty, the defendant has perhaps cause of complaint; but as to the plaintiff in the execution, it is no cause of complaint provided he gets his judgment, nor can be charge the sheriff with a breach of official duty.

When a sheriff levies on goods sufficient at the time to satisfy an execution, but which before, the day of sale depreciate in value, the sheriff is not bound to make good such depreciation.

When a sheriff'or other officer is charged with breach of duty, hiá considering the current bank notes of the country as money and acting upon that basis, without notice not to do so by those concerned, is not a breach of' duty.

rI his was an action of debt on a sheriff’s bond, against tho defendant Carter and his sureties; The breach assigned was, that on the-26th of November, 1818, lisp *329plaintiffs issued their writ off. fa. to the defendant Carter, then sheriff of Hertford, tested on the same day and \ , ** year and delivered on that day, whereby he was commanded of the goods and chattels, lands and tenements of Howell Jones, he should 'cause to be made the sum of g 1879 20 with interest from the 10th of June, 1817, and have the same before the justices of Hertford County Court on the 4tli Monday of February, 1819) and that although Howell Jones had in said county, from the 25th of November, 1818, to the 4th Monday of February, 1819, goods and chattels, of the value of twenty thoi;sand dollars, in his possession, and his own property, yet that the defendant Carter had not raised the money as commanded.

On the part of the plaintiff it was proved below, that Harwell Jones liad, in the county of Hertford, personal property to the amount of Í0,000 or 20,000 dollars,- from the 26th of November until the 4th Monday of February, 1819. •

The defendants then proved that Carter, on the 15th of January, 1819, levied the fi. fa. of the plaintiff’s, together with four others of the samé teste, on a house and lots and store house, and stahles and a ware house, which wei’e in the occupation.of Howell Jones in the town of Murfreesborough, and also on several slaves in the possession of Janes. All the writs amounted to nearly 5000 dollars, and the plaintiffs’ writ was returned on the 4th Monday of February, 1819, endorsed «forborne by the ©rders of plaintiffs:” a venditioni exponas then issued from February, 1819, returnable the ensuing May, which was returned, endorsed «no sale for want of bidders.” The defendant Carter then retired from office.

A venditioni exponas returnable November, 18 Í9, then issued, on which the successor of Carter made the sum of $1287 75, which was paid to the plaintiffs; and on another venditioni exponas, issuing from November’, 1819, to February, 1829, the further sum of $495 22 was *330made and paid to the plaintiffs. All the property levied otlj on the 15th of January, 1819, was sold under the last venditioni exponas; and it appeared that none of the writs which were levied on the 15th of January, 1819, were satisfied: the balance due 6n thofi.fa. of plaintiffs, together with interest, was claimed as damages. The defendant then introduced witnesses who swore that the property levied on, on the 15th of January, 1819, was more than sufficient to satisfy the executions if sold at its fair value, but it was uncertain what it would command at a sheriff’s sale for specie. One witness testified that William Amis had deposited with an agent bank notes to buy the houses and lots, and that he declined bidding because the property was sold for specie. The amount of these bank notes the witness did not know, but he, the witness, was to buy of Mr. Amis (if he became the purchaser) at the price of $4500 on a credit. And this witness further swore that property in Murfreesborough declined greatly in value between January and November, 1819.

The plaintiff relied on the sum made by the sale to show that the property levied on was not sufficient in value to pay the executions, and introduced a witness who swore that the levy on the 15th of January, 1819, was not sufficient; and further, that at that time Howell Jones had, besides the property levied on, goods in a store at Murfreesborough'worth between ten and twenty thousand ^dollars; that these goods were afterwards levied on by executions issuing from February, May and August terms, 1819, and the executions were satisfied. When the property levied on by Carter on the 15th of January, 1819, was offered for sale by Carter’s successor on a ven-ditioni exponas, returnable to August, 1819, the agent of the plaintiff directed the sheriff to require specie, and -there was no sale for want of bidders. When the property ■was sold, it was for bank notes at a discount.

On these facts, 1ns honor charged the -.jury that it was *331the duty of the sheriff to levy on personal property he-fore real, and he left it to them to ascertain from the evidence, whether, if the sheriff had levied on the whole of the goods in the Store, the plaintiff’s debt, with interest, would have been satisfied or not; and further to ascertain, whether the levy made on the 15th of January, 1819, was sufficient to satisfy the executions levied on it: that it was the right of the plaintiffs to demand specie, nor could the sheriff complain of it, as every plaintiff had a right to demand it in payment of his execution, and in this case the sheriff must have known the plaintiffs were northern merchants and not bound to receive bank notes even if he had sold for them. The jury returned a verdict for the plaintiff for the penalty of the bond, to be satisfied by the payment of g 396 25, with interest and costs; and the case was here argued on a rule to show cause why a new trial should not be granted.

Gaston, in suppport of the rule.

1. There was misdirection in stating that the sheriff should have levied first on chattels: as respects the plaintiff this is no breach of duty in the sheriff; the writ includes lands and tenements as well as goods and chattels, and issues for the benefit of the plaintiff; the act is directory and to prevent the oppression of the debtor; he may complain if his lands are first taken, but as to the plaintiff, he cannot if he gets his money, and to him if is immaterial by what means that money is made. But if, as to plaintiffs, the sheriff has done wrong in levying first on realty, they can now say nothing, for they have adopted it. M‘Coy v. Beard, (1 Hawks 377.) Again, the breach is not assigned in levying on land instead of personalty; had it been, defendant would have been prepared jo show that it was by plaintiffs’ consent.

2. The judge did not state the general rule as to ih© sheriff’s duty and liability, with certain important modifications and exceptions which belong to it; as that the *332sheriff was at liberty to levy on lands if chattels were not known or pointed out; that the sheriff was not bound to levy on more than was then reasonably sufficient to satisfy ^jie execution; that he was not responsible for a subsequent depreciation in the value of the property; that iff the levy would have made the money but for the postponement, that then the sheriff was not liable.

S. The judge intimated his opinion on the facts; this was improper, Reel v. Reel, (2 Hawks 86, 7, 8.92.); that the sheriff knew there were chattels; that plaintiffs were of another state, and therefore the sheriff might have known that specie would be required.

Evident injustice has been done; all agree that the property has depreciated greatly in value since the levy: had there been no depreciation and valued at what it sold for, it fell short of plaintiff’s claim but $ 283 87. The lands levied on were nearly worth the value, and besides slaves were levied on, yet the verdict is for $ 396 25 with interest on g 317 17.'

The loss (if any) was a consequence of plaintiff’s management; he accepted the levy, postponed the sale, and then refused to receive notes but at an unknown discount.

Baffin and Hogg, contra.

A sheriff is bound to reasonable diligence, and reasonable diligence is a question of law. As to the levy on realty first, the case of M‘Coy v. Beard has decided nothing as to the point of sheriff’s duty to levy first on personalty, and in this case the matter is wholly immaterial: the doctrine involved in the case was this, that it is a sheriff’s duty to levy on enough, and the charge in substance told the jury so, and instructed them to inquire whether enough had been levied on; this was conformable to law.

As to the postponement by the plaintiff, the only proof Of the fact is in the sheriff’s return, and that cannot be *333evidence for him in this action, which is in the nature of one for a false return.

Gasion,

to show that the sheriff’s return w as evidence, cited Norris’s Peake 82; to which Ruffin replied, that it was obviously meant that it was'evidence only as between third persons.

Taylor, Chief Justice.

Every plaintiff is undoubtedly entitled to demand specie, and is not bound to receive bank bills in payment of his judgment. But the greatest injustice would be done if in actions against sheriffs for an insufficient levy, the Court were not to take notice that the currency of the country is in bank bills; and that where it is not stipulated to the contrary, all persons calculate upon paying and receiving such bills. If, therefore, a sheriff makes a levy upon property which would be adequate were it sold for bank notes, but inadequate were it sold for specie, he cannot in reason, be chargeable upon his bond, unless previous notice be given him that specie alone will be receivable. The jury should have been instructed to inquire whether the levy were sufficient, if the property had been sold for bank notes; and if it wras, it would, in my opinion, have discharged the sheriff, without previous notice distinctly given that specie alone would be received. Nor is it right, that the sheriff should be chargeable with any depreciation occurring to the property during the time that the execution was foreborne by the plaintiff; of this fact of forbearance, the sheriff’s return is prima fade evidence; and it should have been taken into consideration by the jury. I think there ought to be a new trial.

Hall, Judge.

The judge in his charge to the jury-stated, that it was the duty of the sheriff to levy on personal property before real; and it must be taken, I think, that the law was so stated to strengthen the claim of the plaintiff and weaken the ground on which the defendant *334stood. In a contest between the defendant in the execution and the sheriff, on account of the. sheriff having levied on the real instead of the personal property of the de-fent[ant, it would be indispensable so to declare the law to be; but between the plaintiff in the execution and tlie sheriff, such .misconduct of the sheriff cannot be examined; it cannot be the ground of complaint or censure; and to have stated it in the present case may have thrown undue weight in the scale against the defendant.

It was very properly left to the jury to ascertain whether the levy on Jones’s property, made on the 15th of January, 1819, was sufficient to sátisfy the execution then levied. If it was sufficient, I think the defendant ought to be excused, although it afterwards turned out. riot to be sufficient on account of its depreciation in value.But the judge again leaves it to the jury to ascertain whether, «if the sheriff had levied on the whole of the goods in the store, the plaintiff’s debt; with interest, would have been satisfied or not.” This part of the charge seems to interfere with that which directed them to ascertain « whether the property levied on, on the 15th of January, 1819, -was sufficient to satisfy the execution levied on it;” because, although they found that it was sufficient and the- defendant thereby excused, yet if they again found that in case he had levied on the whole of the goods in the store the debts with interest might have been satisfied, they must-have found'a verdict against him on that account, although they had just acquitted him of blame, because the lands and negroes levied upon, on die 15th January, 1819, were sufficient. I think the rule'for a now trial should be made absolute.

Henderson, Judge.

The breach assigned is, that' the sheriff did not levy on property sufficient to satisfy the plaintiff’s execution, he having it fully in his power to do so. The levy was made in January, the sale took place the December following by another officer, under a *335 .Venditioni exponas, the sheriff Garter having gone out of office in May. The sheriff insists that the property levied on was of sufficient value at the time of the levy; but from decline in price, and other causes not within his control, when sold in December the proceeds were insufficient to satisfy the plaintiff’s execution. The plaintiff relies upon the proceeds of the sale as the evidence of the value, and also insists upon the specie price as the sole standard. The judge informed the jury “that it was the duty of the sheriff to levy Jon personal property before he levied on real property; and left it to them to ascertain from the evidence, that if the sheriff had levied on the goods in the store, whether the whole debts of the plaintiff in the execution would not have been satisfied, and instructs them to ascertain from the whole evidence whether the property levied on was sufficient on the 15th January, 1819, the time of the levy, to satisfy the executions levied; and that it was the right of the plaintiff to demand specie, and it was no fraud in the plaintiff’s agent to • demand specie, nor could the sheriff complain of it.; as every plaintiff had a right to demand it in payment of his execution, and in this case the sheriff must have known the plain•tiffs were northern merchants and were not bound to receive bank notes, even if he had sold for them.” The above is a quotation from the judge’s charge, taken from the transcript, I have taken down the words, for I am not certain that I understand in what manner it was intended to, or did bear, upon the case. The first position is certainly correct ás applying to, a defendant in an execution; he and he only can complain; so far as it affected the parties in this action, it was irrelevant, nor do I see wherefore it was introduced, unless it was to throw on the defendant the responsibility of a loss upon a deferred sale, no matter from what cause the loss arose; if the property levied on was not quite of sufficient value to satisfy the execution, and if it stood alone, I would understand it without that qualification, but taken in con-*336flection witli the real object of their inquiry as pointed out by the charge, it is but a fair construction to add that qualification to it: but even so explained, it has an jmpr0per influence on the case; for instead of making the difference in the value of the property (levied on) at the time of such levy, and the amount of the execution, the measure of the damages ¡'this act being considered by. the judge as wrongful,) he subjected the sheriff to bear the whole loss arising from the deferred sale, and thus the difference between the actual proceeds of such sale and the amount then due on the execution became the measure of the damages. This is the most harmless way in which I can understand it. I am also at a loss how to apply to the case the remark as to the right of creditors requiring payments in specie. It points at two parts of the case. From the evidence it is quite clear that it was a question on the trial, who caused the delay in the sale. The defendant contended that the plaintiff did, and introduces the circumstances which took place on the day appointed for the sale on the execution returnable to August, after Carter was out of office. Among other things the defendant proved, that the plaintiff’s agent, after being pressed by Jones-, the defendant in the execution, more than once for. delay, observed that he could not consent to it. but as he should demand specie he imagined there, would be no sale, -and insisted that this ivas evidence from which the jury might infer that the sale was deferred by the act and connivance of the plaintiff’s agent, and that he the sheriff ought not to be responsible for any loss occasioned by such delay. Now if the judge pointed that part of his charge to this circumstance, or ' rather if the jury so understood it, it was an error; for however lawful it might be for the plaintiff to demand specie, it was relevant tor the jury to infer from this act that the plaintiff consented to and connived at a delay; whether it proved it or not is not for me to say, it was for the jury. But the plaintiff might cause a delay by a *337lawful as well as by an unlawful act, which the defendant did not controvert at all. All that he required was, that the consequences of the plaintiff’s act (and whether it was the plaintiff’s act the jury were to judge) should not be thrown upon him. If, therefore, the judge is understood as informing the jury that as the act was lawful, the consequences of it ought not to be borne by the person who did it, he erred; for one of the best criterions to ascertain whether an act is lawful or unlawful, is whether the actor bears himself all the consequences, or if they fall on another; if on the actor alone, it is almost. I believe I may say always invariably, lawful; if on others, and they are injured, it is most usually unlawful. These two points go to the standard by which the damages should be measured. But this specie payment may point to a more important question. It seems that in ascertaining the value of the property levied on, the plaintiff contended that the specie value was the true criterion; and if the judge meant by that what the property would sell for in specie, after reasonable notice of the terms, I am not prepared to say that he was wrong. I am fully confident that he would not be wrong, if he means a sale for current bank notes, with such a discount on them as would reduce them to their specie value. But if he means such a sum as the property would sell for in actual specie, ’without giving notice a reasonable time before hand that such would be the terms of sale, I am fully confident he is wrong. For such rule would place sheriffs entirely at the mercy of the plaintiffs, and they, to save themselves from ruin, from .fines and forfeitures and civil liabilities, would in every case levy on treble the value of the property or more, and in cases where it was not intended to demand specie, when the sheriff might be easily placed on his guard, by only requiring that before he shall he subject to those fines, penalties, forfeitures, and liabilities for breach of duty, the law should require *338what is consonant with practice and convenient, viz. that notice should be given.

I do not intend to say that bank notes are money, or a tender in payment of debts, but by consent. Nor do I say that a payment in bank notes may be refused without any previous notice to that effect. All that I intend to say is this, that when a sheriff or other officer is charged with a breach of duty in office, his considering the cur, rent bank notes of the country as money, and acting upon that basis, without notice to the contrary by those concerned, is not a breach of duty. But I do not mean to say that if the sheriff sells for bank notes without notice to sell for specie, that the creditor is bound to take such notes, or that the sheriff is not liable to be sued for the money; but it cannot be considered as a malfeasance in office, or subject him to any fine or penalty, or any action where the grievance is breach of official duty.

I.think that, as it is pretty apparent that the jury was misdirected by the judge, there should be a hew trial.