Parks v. . Alexander

Supreme Court of North Carolina

Decided August 5, 1847

Supreme Court of North Carolina · decided 1847-08-05

Cited by 2 later decisions — most recently March 1909

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1847-08-05

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¶1It was the duty of the sheriff, after he received the note for collection, to have had a judgment rendered on it, and an execution issued against Johnson in a reasonable time; and then it was his duty to have gone to the house of Johnson in search of property to levy on. If the sheriff had pursued this course, he must have found property worth as much as the amount of the execution. He had no right to return nulla bona without making any effort to find property at the residence of the defendant in the execution or making any demand of payment or inquiry for property. The general report that Johnson was *288 insolvent did not excuse the sheriff in his negligence. We may be very certain that if the debt had been the sheriff's own he would have made inquiries, which would have led to the seizure and sale of the debtor's property.

¶2PER CURIAM. No error.

¶3(415)

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Case posture

Posture: APPEAL from MECKLENBURG Special Term in November, 1846; Pearson, J . Debt upon the defendant's bond as sheriff for 1840. The breach assigned was a failure to collect a debt due by one Johnson, which had been placed in his hands for collection. The plaintiff proved that in May, 1840, he placed in the (413) defendant's hands for collection a note due by the said Johnson for about $30. The plaintiff called one McGilvery, who swore that during the summer and fall of 1840, and until some time in 1841, Johnson had in his possession, using and claiming as his own, a carryall and buggy, worth over $50; and that in 1841 the carryall and buggy were sold by a constable to satisfy another debt of Johnson's. The defendant called several witnesses who swore that in 1838 Johnson was sold out, and from that time until his death in 1842 was reputed and considered to be insolvent. Johnson, as well as the plaintiff and defendant, all lived in the town of Charlotte. None of these witnesses had ever been to the house of Johnson to make inquiry after property. Johnson was an intemperate man, a saddler and harness-maker by trade, and worked in a shop owned by one Houston, and was generally supposed to have no property and to be entirely insolvent. The defendant's counsel insisted that when a man was generally reputed to be insolvent, an officer could not be made liable for failing to collect a debt unless the plaintiff showed him property, or proved that the officer knew that the debtor had property. The court refused so to instruct the jury, but told them that if they believed the testimony of the witness McGilvery, the defendant had not used due diligence, and was liable in damages to the plaintiff for his neglect; that where a debtor had property in his possession, it was the duty of the officer to make inquiry, notwithstanding a general report as to the debtor's insolvency, and if it turned out that the debtor was in fact the owner of property liable to execution, it was no excuse for the officer, and he had no right to say that it was the plaintiff's business to make the inquiry and inform him of the fact. The jury found a verdict in favor of the plaintiff. A rule for a new trial for misdirection was discharged. There was judgment for the plaintiff, and the defendants appealed. (414)

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Supreme Court of North Carolina