#### State on the relation of JENKENS & ROBERTS v. HENRY TROUTMAN et al.

Where a sheriff had a writ -against a resident of another State, who was known by the sheriff to be in his county, on a temporary visit, and such sheriff was also informed by one of whom he enquired, that the person sought, would be at a particular place, near the county line, on a certain day mentioned,-on his way out of the State, and he failed to be present on the day mentioned, when, if he had been there, he might have arrested the defendant, and showed no reasons for not going there, it was held to be negligence.

Where a sheriff is shown to be guilty of negligence in 'failing to serve a writ, the onus of showing that the defendant in the writ was insolvent, devolves upon him.

In a case, where the question was as to the ability of -the debtor in a capias ad respondendum, to meet the debt, if he had been arrested, evidence of his being indebted to others, was held to be immaterial and irrelevant.

This was an action of deb®, on a sheriff’s bond, tried before Heatii, J., at the last Eall Term of Rowan Superior Court.

The exeeution-of this bond by the defendant, Troutman, as the sheriff of Iredell-county, and the other defendants, as sureties, was proved by the subscribing witness. The breach assigned, was the failure on the part of Troutman, to arrest one Jalias W. Houston, on a capias ad respondendum. The plaintiff proved that prior to September, 1855, and up to the time of issuing the writ in this cause, said Houston was indebted to them in the sum of $690.84, which is not yet paid. That on the 4th day -of September, 1855, a writ of capias ad respondendum against said Houston and one Randolph, for the debt aforesaid, was placed in said Troutman’s hands. Randolph was a resident of Rowan, and was at that time insolvent, and has]so continued ever since, possessing no goods or effects out of which this debt could be made, either in whole or in part.-— That Houston was then, not a resident of this State; was raised in Iredell, hut removed in 1851 or 1852, from Rowan to California. That Houston, at the time the writ aforesaid came to the sheriff’s hands, was on a visit to his relations and friends in Iredell county. That defendant, Troutman, between *170the first and fifteenth of September, went to a witness, one Soseborough, and said he did not know Houston; and asked where he was to.be found. Roseborongh told him he understood he was at the house of his (Houston’s) brother-in-law, who lived in Iredell, about two miles and a half from States-ville, where this conversation occurred. That Troutman lived about seven miles from Statesville. The same witness further proved that early in the morning of the Monday on which Houston left the State, about the first of October, 1855, ho saw said Houston in a carriage with his mother, passing through Statesville, towards Charlotte; that after they had passed, Troutman came into witness’ store, and enquired for Houston ; witness told him that he had passed in the carriage with his mother, and that Troutman said, from description he must have met Houston two miles and a half from Statesville, and started away. On cross-examination, witness said that Houston, when he left the State, in 1851 or 1852, was generally reputed insolvent, and without property.

The plaintiff proved by Mrs. Thom, that she is an aunt of Houston; that she lived in Iredell county, about twenty miles from Statesville, and within a mile of the Mecklenburg line; that Troutman came to her house on Wednesday or Thursday before Houston left the State, and made enquiry for him ; that she told him she had seen Houston, and expected him at her house on the following Friday, Saturday or Monday, on his way to Alabama, though he might not come; that Houston came to her house on the next Monday in a carriage with his mother, whom ,he left at her house, took a cup of coffee, and left soon after, about 12 o’clock mid-day, in the direction of Charlotte, there to take the cars for Alabama; since which time she had not seen him. She further swore that defendant, Troutman, was not at her house on either of these days; nor had she any recollection that his brother was there on these days. On cross-examination, she said that Houston stayed at no one particular place, in Iredell; while there, he was mostly at his brother’s house aforesaid, — sometimes at one friends or relation’s house, sometimes at anoth*171er’s, and that he visited Catawba, Mecklenburg, and Rowan. The return of the sheriff was, “ not to be found.” The plaintiff then read the depositions of Julius W. Houston, and Dr. Houston. J. "W. Houston, in his deposition, stated that he was in Iredell county, North Carolina, in September and October of the year, 1855 ; that he remained there some five or six weeks ; that he then left for Alabama, and has.not been back since. That while in North Carolina, he was possessed of no property, and had no money or effects of any kind, either in his own hands, or in the hands of any one else; that no one was indebted to him in this State, at the time alluded to, or since. He further stated, that he had money and effects accumulated by him in California at the time he was in North Carolina.

Dr. Houston, in his deposition, stated that J. W. Houston was at his house in Iredell county, N. 0., for some two or three weeks' during the months of August and September, 1855, and that he left for Alabama some time about the first of October, the same year.

The defendant introduced one Troutman, brother of the defendant, Troutman, who swore that on Monday morning about the last of September or the first of October, 1855, the defendant, Troutman, came to witness’ house about two and a half miles from Statesville, on the road towards Mrs. Thom’s; that he said he was going to arrest J. W. Houston, and desired him to go along with him; that witness started with him; that the road to Mrs. Thom’s forked about a mile from his house, both fork’s leading to Mrs. Thom’s; that witness took one fork, and defendant, Troutman, the other; that defendant, Troutman, did not tell him that Houston was ahead, or that he expected to find him at Mrs. Thom’s, or that she had told him anything about Houston or his whereabouts ; that after they separated at the fork, witness rode on at ordinary speed and reached Mrs. Thom’s at two or three o’clock in the evening, enquired for Houston, learned that he had left; turned back and met defendant, Troutman, near Mrs. Thom’s, and they returned to his house together; that defendant, Troutman, lived *172between Statesville and Mrs. Thom’s, and that in going home from Statesville, would travel that road. The defendant offered to .prove that Houston was largely indebted to different persons in Iredell and Rowan. The plaintiff objected that this evidence of debt was irrelevant, and that the evidences •of debt, which were notes and bonds, were not produced. The objection was susiained, and the evidence ruled out. Defendants excepted. The plaintiff then proved that Houston had many wealthy relations and friends in Iredell county, at the issuing of the writ, and tire return thereof. The defendants insisted that the deposition of Houston, in connection with the evidence of his insolvency when he left the State in 1851 or 1852, showed he was insolvent in 1855, and had no effects or property from which plaintiffs’ debts could have been made, in whole or in part, and that plaintiff was not entitled to recover anything, or if entitled to recover anything, the recovery must be limited to nominal damages.

The Judge charged the jury, that taking all the evidence into consideration, if believed, there was negligence, and that plaintiff was entitled to their verdict; that as-the deposition of Julius W. Houston, showed, if believed, and that was a question lor them, that he had considerable monies and effects in California, then the plaintiffs were entitled to indemnity for loss of their debt, and ought to recover the full amount thereof, unless the defendant had shown that the full amount could not have been realized therefrom. But if defendant had shown that the full amount could not have been realized out of those monies and effects, then the plaintiffs were entitled to recover in damages, an amount equal to what the jury were satisfied could have been realized from Houston, had the sheriff arrested him, and held him to bail, or imprisoned him under the capias ad respondendum. There was a verdict for the full amount of the debt in favor of the plaintiffs. Judgment. Appeal by defendants.

Fleming, for plaintiffs.

F’owle, Osborne and Sharpe, for defendants.

*173Battle, J.

The testimony, in this ease, is not materially variant from that given on the trial of the case oi Murphy v. the same defendant, and reported in 5 Jones’ Rep. 379. The principal defendant, Ilenry Troutman, was unquestionably guilty of negligence in not executing the writ of capias ad respondendum, which, as the sheriff of the county of Iredell, lie had in his hands against J. W. Houston. So far from making a diligent effort to arrest the debtor, as the exigency of the writ demauded, and as his duty required, he seems rather to have avoided a meeting with him, and to have contented himself with making a few enquiries about him, and at last, an exceedingly slow pursuit after him. The presiding Judge was, therefore, fully justified in his instruction to the jury, that the defendant was guilty of neglect in failing to make an arrest. The charge of his Honor was, in our opinion, equally correct on the question of damages. “ As the plaintiff had put the defendant in the wrong. he was liable for such damages as had been sustained thereby, which prima faeie was the amount of the debt that was lost, and it was for the defendant to mitigate the damages, by proving that the effect of his wrongful act was not so great, because the debtor, who had been suffered to leave the State, had not the ability to pay the debt, and his arrest would not have enabled the plaintiff to realize the amount, or any part thereof; or if a part, only, could have been thereby realized, then to limit his liability to that amount.” This was the doctrine held in the case of Murphy v. Troutman, above referred to, and although the English cases on the subject seem to be in a state of perplexing uncertainty, the current of decisions in the different States of the union, supports the conclusion at which we have arrived. See Sedgwick on Damages, 510, et seq, and 2 Hilliard on Torts, 340, et seq. The testimony offered by the defendants, to show that J. W. Houston was largely indebted, by notes and bonds, to different persons in the counties of Iredell and Rowan, was properly rejected, because it was immaterial and irrelevant. The object of the testimony was, we are told, to lessen the amount of damages to which the' *174plaintiff would have been otherwise entitled, because, it is argued, that the debtor would, if he had been arrested, probably, have assigned his property to secure the payment of those debts, and would thereby have diminished the plaintiffs’ chance to get theirs. This argument is fully answered by what was said by the Court in the somewhat similar case of Sherrill v. Shuford, 10 Ire. Rep. 200. “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 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 wdiich might, by duo process, have been subjected to it, he shall answer to the full amount of the debt.”

Per Curiam,

Judgment affirmed.