#### ABSALOM SHERRILL vs. ANDREW H. SHUFORD.

Il is nó answer for a sheriff io say, when sued for negligence in not exeeu- . ting process against a debtor, that the debtor, even after being imprisoned under a ca..sti-, mi.lit pay, or secure to be paid by assignment, other bona fide debts, to the disappointment of the judgment creditor.

The true enquiiy is, lias 1 he sheriff, by his negligence, deprived the plaintiff of any legal means of securing the payment of his debt? If he lias, and the debtor lmd property, which might, by due process,.have been subject lo it, the sheriff shall be liable to the amount of the debt, which might have been thus secured.

Appeal, from the Superior Court of Law of Catáwbá County, at the Fall Term 184S, his Honor Judge Moore presiding.

Tito action is brought in debt on fhe defendant’s official bond, as Sheri ft’of Catawba County. The breach assigned is, in not using clue diligence to collect a note pat. into his hands. One Douglas owed the. plaintiff one hundred dollars, due by note, which he put into the'lmnds of the plnintiffon Thursday, together with a warrant and a bail bond, and look from 1dm a receipt for the same. At the same time lie informed the di fend nut, that Douglas was in I he County, and he wanted him to execute the process forthwith. Douglass- had been a ciiizen of Catawba County. but.had removed to Tennessee, taking with him several negroes, and it was proved, that he had ihe same negroes some time after his arrival, and a tract of land and a considerable quantity oí stock. When he removed he was reported to be insolvent. When the defendant received the note and warrant, he said he could not execute the process until Saturday, as he had an en*201gagement to sell some property the next day at Newton. On Saturday morning, the defendantstarted, as he alleged, to serve the process, when he was informed, that Douglass had started on his return to Tennessee, and that he could not overtake him, until he got out of the County. Douglass took with him, when he left, a mare and Colt, worth from $75 to $80, which were in his possession when the warrant was put into the defendant’s hands. Douglass left on Sunday morning.

Upon the subject of damages, his Honor instructed the jury, that, if the defendant, by using proper diligence, could have subjected the horses to - the payment of the debt, which Douglass owed the plaintiff, then the latter would be entitled to a verdict for the value of the horses. As to the property in Tennessee, the jury was instructed, that the plaintiff had no wa}- to subject that, directly, to the payment of his debt, but if the defendant had executed the warrant, and had held Douglass to bail, he might have been thereby compelled to go to jail, and, before he could have taken the oath of an insolvent debtor, he would- have been obliged to make a surrender, in his schedule or otherwise, of the property in Tennessee. But, in considering the value of the chance of the plaintiff’s collecting his debt in this way, or in any other, if Douglass had given bail, it was necessary for them to advert to the testimony of Douglass’ insolvency, and his right by deed of trust, and other legal means, to prefer his other creditors.

The verdict was for the plaintiff, and, under the instructions of the Judge, the damages were assessed at six-pence. From the judgment upon this verdict the plaintiff appealed, and excepted to the charge, upon the subject of damages.

Boyden and Guión, for the plaintiff.

H. C. Jones and Gaither, for the defendant,

*202Nash, J.

The plaintiff is not entitled to a new trial, unless the Court, in its charge, committed some error in law. We think the latter part of the Judge’s charge is erroneous in two particluars. There was no evidence in the case to support it, and it was incorrect in law. We are to presume that the exception contains all the evidence, upon which the charge was bottomed. There was then no evidence of the insolvency of Douglass. On the contrary, the case states, that, at the time the warrant was put into the hands of the defendant, he had two horses, which he carried off with him, when he left the State, and a plantation and negroes and stock in Tennessee. But the rule laid down, by which the jury were to calculate the plaintiff’s chance of securing his debt, has no foundation in law. It is true, that a debtor, even after being imprisoned under a ca. sa. may pay other bona fide debts, to the disappointment of his judgment creditor, but that he may do so is no evidence that he will do so, nor is it any answer in the mouth of the sheriff, when sued for negligence in not executing a writ. If it can shield the sheriff in this case, from answering in substantial damages, it will answer in any other, where the defendant may owe more than he can pay. In all such cases, the officer may keep the writ in his pocket, and, when sued, turn upon the plaintiff and say, “you have suffered no injury; if I had executed the writ and taken bail, the defendant might have paid away all his property, in discharge of other debts, and you would have got nothing.” This cannot be the law. The true enquiry is, has the defendant, by his negligence, deprived the plaintiff of any legal means of securing the payment of his debt ? If he has, and the debtor had property which might, by due process, have been subject to it, he shall answer to the full amount of the debt; and his Honor in his charge very fully pointed out to the jury, how that might have been done, if the process had been served. Another ob*203jection to the part of the charge we are considering is, that there is no evidence that Douglass owed one cent, but what he owed to this plaintiff. There was no error in refusing the charge required. If the defendant could not, by any diligence, have collected the debt from Doug* lass, then the plaintiff had suffered no actual loss, and the defendant was liable only to nominal damages.

Per Curiam.

Judgment reversed and a venire de novo. awarded.