#### M'Coy v. Beard.

From Rowan.

A Sheriff is i*ot liable to a recovery for misteasanue in office, by levying on lands when Defendant in the execution had personal pro perty sufficient to satisfy tlxe debt, unless it be shewn that he knew it to be the property of Defendant — or unless it be pointed out to him as such, and an indemnity offered to sell it.,

This was an action on the case against the Defendant as Sheriff o! Itowan County, for a breach of official duty. The misfeasance assigned in the declaration was, that the Defendant, when Sheriff, had neglected to levy a fu fa. which came to his hands in favor of the Plaintiff, ort the goods and chattels of one Pearson; but instead thereof, had levied upon lands and tenements, which, be-/ fore the issuing of the Ji./a. had been mortgaged by Pear-to .secure a debt equal to their value, and in const; . *378quence of this misconduct of the Defendant, the Plaintiff had lost his debt.

The Plaintiff recovered a judgment against Pearson at May sessions, 1820, of Rowan County Court, and sued out &fi.fa. returnable the ensuing August; the Defendant levied this fi. fa. on four lots with their improvements, in the town of Salisbury, which, if unencumbered, were of value sufficient to satisfy the fi. fa. The Defendant, in his return, set forth the levy, and that on the 26th of August he offered the property for sale, and the sale was postponed by Plaintiff’s attorney. The 26th of August was the last day of the term to which the fi.fa. was returnable. Pearson, who was a carriage-maker, had on hand at the time of the levy, and upon the lots levied on, carriages and other personal property, more than sufficient to discharge the debt, and this property was in no wise concealed or kept out of the Sheriff’s way. When the levy was made, Pearson assented thereto, and entered into a bond to the Sheriff to indemnify him should he sell at the Court ensuing without advertisement, in the event of the money not being paid. On the 26th of August the property was exposed to sale, but no bid was made for it, and it was at that time first ascertained by the Sheriff that the property had been mortgaged by Pearson to secure a debt of its full value.

At August sessions, to which the fi.fa. was returnable, Allemong & Locke obtained a judgment against Pearson, and on the same 26th of August, after the adjournment of the Court, sued out a fi.fa. returnable to November ensuing; and on the same day, the Defendant levied the fi.fa. of Allemong & Locke on all the personal property of Pearson, who at the time urged upon the Sheriff that his personal property should be applied to the satisfaction of the Plaintiff’s judgment. All the personal property was sold to satisfy the execution in favor of Allemong & Locke, and Pearson has since that time been insolvent.-

*379The Plaintiff sued out a ven. ex. with a clause of spe-1 Jal ft. fa. upon the levy that had been made upon the lots, from the August sessions, returnable to the Novem-her sessions, and delivered it to the Defendant after the levy had been made for Ailemong & Locke. The Sheriff then aduu-ti.sed the lots for sale, and they were bid off at the price of one dollar, owing to the incumbrance aforesaid. The mortgage deed had been proved and registered before the Plaintiff had obtained his judgment against Pearson.

The Ctr.H'i, instructed the Jury, that if they believed f.hfc te/thnor,/, the law was in favour of the Plaintiff. The Jury found a verdict for the Plaintiff 5 and the case now stood before this Court on a rule to shew cause why a new trial should not he granted.

Ruffin for the Sheriff.

The Defendant did no fault in levying on the lots instead of the personalty. The act of 1777, N. It. eh. 115, see. 29, is solely for the debtor’s benefit. If he refuse to produce personalty, his land may be sold, which shews that his interest alone is regarded; his default could not deprive the creditor of a right. All he gets is his money, and to him it is immaterial whence that comes ; hence it seems a consequence, that as the debtor may forfeit the privilege of his land, he may likewise waive it by express agreement. The like answer may be given to the want of an advertisement. Beside:?, the loss here is not founded on that default. It is not denied, that if, through fraud, a Sheriff smuggle a sale without notice, for less than the value of the property, and the creditor lose his debt, the officer would be liable in a special action : but here is nothing of that kind. If the act referred to, be for the debtor’s benefit alone, the Sheriff is not in default; he has not violated the letter pf his precept j it runs against “ goods and chattels? lands -and tenements/’ and on its face does not distinguish between them. Nor has be violated the law, if our con*380struction be coiTCct,: applying it to tlie execution, anti incorporating them together, the writ will be against the goods and chattels of the Defendant; but if there be no ° such goods and chattels to the best of your knowledge, or if the Defendant will not produce them, or if he shall require you to sell his lands and tenements inNhc first instance, then of such lands and tenements make, &c. The lands were, therefore, as regards these parties, a primary fund for the satisfaction of the execution.

The case seems to be the same as if the Sheriff had levied on a part of the debtor’s personalty, e, g. one of two slaves belonging to the debtor and in his possession, of value sufficient to satisfy the debt, and it die before the sale be made — in such case the officer shall be excused, because he acted with reasonable diligence and caution. If he wantonly take two slaves when one would suffice, he exposes himself to the action of the debtor ; and if he be liable to the creditor upon the death of the slave, then a case may exist in which the officer will, without his default and at all events, be liable to the Plaintiff or the Defendant in execution. The principle appears in like manner to apply to a levy upon property that is subject to execution, and which all the _world would say was sufficient, though it furn out not to be so, by reason of a secret incumbrance : such a defect seems to be on the same footing with that arising from disease, of which the seeds, were lurking unperceived in the constitution.

But the acts of the Sheriff, if erroneous, were adopted by the Plaintiff, and made his own. The Plaintiff is presumed to know at least as much of his debtor’s situation as the officer, and he is as much concluded by his own acts. The Plaintiff had the right of controlling the execution, and when the Sheriff offered the lots for sale, the. Plaintiff postponed it. If the sale had taken place, am alias fi. fa. would have issued during August term, and *381of course before those that issued on the judgments ren-tiered at that term, and might have been satisfied.

If r.o .sale had been made for want of a bid, the Plain-i5,ff might have discharged the levy, by directing the Sheriff not to return it; or, if he did return it, he might have waived it by suing out aJi.fa. generally — (Den v. Backhouse, 3 Murph. M. 63 — Scott v. Hill, cited in that ease,) in either case, if he had been diligent in taking out execution and delivering it, satisfaction might have been had. Instead of so doing, the Plaintiff interposes and accepts the levy : he prevents a sale ; he requires the levy to be returned, and takes out a ven. ex. with a special clause oí ji.fa. which prevents from taking the personalty before another creditor has sold it — Mlemong & Locke v. Allison & Kelly, (1 Hawks9 Rep. 253.) These proceedings ratify all the acts of the Sheriff ; and the Plaintiff’s loss is the fruit of his own folly ; and if he could have sued the Sheriff for a false return of nulla, bona to August, he has made an election not to do it, which, binds him. If a new Sheriff receive a prisoner from his predecessor, he is answerable for his escape, though there had been a voluntary escape in the time of his predecessor ; and the Plaintiff has his election, cither to consider the debtor in execution, and so charge t he new Sheriff’, or, as out of execution, and so charge the old Sheriff; but. if he once make his election* and sue the old Sheriff, he is concluded, and can have no action against the new' — llawson v. Turner, (4 Johns. Rep. 469.) So the Sheriff is justified in returning nulla bona, contrary to the fact, if the Plaintiff cause his Ji. fa. to be levied with instructions, to delay sale and let Defendant keep possession of the goods, and another ji. fa. come to Sheriff’s hands afterwards, on which he sells the goods and returns satisfaction — Whipple v. Fool, (2 Johns, Rep. 422, and the other authorities there cited.)

The Plaintiff recovered his whole debt under the charge of the Court. If the Sheriff be liable at all. he is not se *382necessarily, and by law, for the whole $ but only for such damages as actually arose from his act, which ought to have been left to the Jury to assess. It is not for every negligence of the officer, or for every delay caused to tiie creditor, that the Sheriff is liable for the whole. If, for instance, Pearson had remained solvent, and upon a second execution the Plaintiff had obtained satisfaction, lie could not likewise get it from the Sheriff; so, if he might obtain it from the debtor, if he had been reasonably diligent, as was hero the case. A just compensation for the loss flowing from the identical act complained of, is all the law intends; as in case, for the escape of an insolvent debtor in execution, the Sheriff is not liable for the whole, as in debt on the statute ; but only to repair the real injury, as estimated by a Jury. The case states, that all the personalty remained with Pearson, up to August Term ¡ and if the Plaintiff had sued out his Ji. fa. as the law gives a preference to an alias above an original j^. fa. or to the writ first delivered, he might have been paid; or if all the writs of f. fa. issued from the same term, be entitled to a distribution of the debtor's1 effects,, there would have been a partial satisfaction. The Court did not advert to that circumstance, but charged the Jury that the law was in favour of the Plain* tiff generally,

Wilson, contra.

The case of Mlemong & Locke v. M-lison & Kelly, grew out of the same transaction with the present case. The Court, there, do not decide the question, whether creditors, when their interests interfere, shall have a lien from the teste or the delivery of their executions $ but they have decided that the present Plaintiff had no right to the money raised by the sale of Pearson's property between the August and November Terms. Had the Sheriff performed his duty, this question never could have been made : the Sheriff is bound, by law, to levy of the goods and chattels of the Defendant in the *383execution, and for the want thereof, then upon the land-r-(JV*. R. ch. 115, sec, 29.) Instead of doing this, he levied on certain lots of ground in Salisbury, and agreed with the Defendant not to advertise, tailing from him a bond of indemnity. This was a violation of official duty, and lie thereby subjected himself to the payment of Plaintiff’s debt.

It is no excuse for him to say, that if the present Plaintiff had issued an alias execution, the money might have been raised. I know no rule of law or common íiense, that requires the aid of a Plaintiff in an execution, to extricate a Sheriff from a difficulty brought upon himself by his owm wrong. An obedience to the mandate of the writ, would have raised the money at August Court; Ms failure to obey has caused a total loss of the Plaintiff’s claim.

Hall, Judge.

I think, in this case, before a verdict bad been rendered against the Defendant, a knowledge of the fact that the personal property spoken of was the property of Pearson, should be brought home to him, or it ought to appear that the property had been pointed out to him as the property of Pearson, with an indemnity to sell it. It appeared that Pearson had on the lots, carriages, and other personal property more than sufficient to discharge the debí, and that the property was not concealed. But it did not appear that the Sheriff had a knowledge that those carriages (the other property is not specified) w ere the property of Pearson, the Defendant in the executions. He might have (bought that they belonged to other persons and had been brought there for the purpose of being repaired. It is to be inferred from the case, but it is not stated, that the carriages, kc. were the property of Pearson. Taking the facts as stated in the case to be true, (and so we must take them) 1 think enough was not proved to warrant the Ju ry in finding a verdict for the Plaintiff, and (hat the rule for a new trial «hould be made absolute.

*384Tayioií, Chief-Justice, and Hendekson, Judge, con? curred»