Wells v. Bourne

¶1The defendant Sheriff, in delivering the property to the defendant without taking a proper undertaking and requiring the same to be justified, became “ responsible for the defendant’s sureties” (The Code, §327), or, in other words, became liable himself as a surety to such undertaking. The measure of liability upon such an undertaking is the delivery of the property to the plaintiff (if such delivery be adjudged), with damages for its deterioration, or, if such delivery cannot be had, then for the value of the property. The Code, § 326. It was necessary, in order to subject the Sheriff as surety, to show that execution had been returned unsatisfied. The execution issued to the Sheriff of Wilson County, and his return of nulla bona was not introduced, nor its non-production accounted for, and his Honor properly excluded oral evidence thereof. The law requires such returns, etc., to be in writing, and public policy requires that *85such evidence shall not be dispensed unless it has been lost or destroyed. The return in this instance is not within the principle of Pollock v. Wilcox, 68 N. C, 46, and other cases cited, in reference to the exception, where the fact sought to be proved is collateral to the writing. The evidence being properly excluded, there was nothing to show any actual damage sustained hv the plaintiff, and the judgment below must therefore be - Affirmed.