Haynes v. Tunstall , 5 Ark. 680 ( 1844 )

By the court,

Lacy J.

There were several exceptions taken- or the trial below. Those that are material, relate to the exclusion oí evidence and the instructions of the court. The suit was brought for a false return against the sheriff,, and was tried upon the issues of not guilty, and nul tiel record. It was urged that a new trial should have been awarded, because after the issues were joined, the court tried the one of nul tiel record, and left the jury to determine the plea of not guilty. The question of nul tiel record was properly tried by the court, and although it may be somewhat irregularly determined, and out of order by that tribunal, still such irregularity furnishes no ground-for awarding a new trial. The law fixing the sheriff’s liability in such a case is- plain and simple. It holds him to the discharge of due and proper diligence in the execution of his trust, and in levying the different processes that may come to hishands; and he could discharge himself from this liability only by showing that he has not been guilty of misconduct or neglect of duty.- When an execution comes to the hands of that officer, he is bound to levy it with a reasonable de-spatch, and to use proper diligence in finding out property of the defendant and seizing it,-and making such return as the law requires. When the plaintiff has established the fact, that an execution has been put in the hands of the sheriff, and that the defendant, at that lime, had property sufficient to discharge the debt or any part of it* he is bound to make the levy, and if he fails to do so,- he must show some unavoidable accident, that has prevented him, or that he could not seize the property by due diligence and exertion. The proof in this case clearly establishes these facts;, that the execution came to-the hands of the sheriff; that at the time he received it, and. after-wards, the defendant in the execution was in possession of a considerable amount of property, which, in a short time, he ran to Texas, and thereby defeated the levy. The defendant in the execution* married the widow of George Bentley. The sheriff offered the will of Bentley in evidence, to prove that his wife took no dower in the iame time, to permit him to circulate them as money, and to hold the lands and slaves of the estate; but accepted in lieu thereof, a pecuniary compensation of five hundred dollars; and that the lands and slaves were the property of the heirs. This testimony, if received, could not have benefited his case, or have varied the finding of the jury. Indeed, it would have materially strengthened the demand against him. By an inspection of the will, it is obvious that the widow was entitled to dower in the estate of her deceased husband, and Owens, by virtue of his marriage with her, took an estate in the lands and slaves which was subject to execution. In moving for a new trial, he appealed to the discretion of the court, and surely he has no right to complain that the court excluded testimony that fixed his liability. Again, the depositions, which were excluded, establish no fact or circumstance that would exhonerate him or show proper diligence. They show property in his possession after the execution came to his hands, and that other persons claimed it; but they wholly fail to show that they had good title. The proof on this point consists mostly of hearsay and belief, and certainly does not contradict the idea that the sheriff was guilty of laches or neglect of duty, or that the persons claiming the property, were the true owners; and consequently, on the motion for a new trial, the court properly refused to set aside the verdict on such testimony.

The defendant below has no cause to complain of the law, as the court gave it in charge to the jury, or of the verdict. By failing to make the levy, if the defendant had property when the execution came to his hands, our statute holds him liable for the whole debt in the execution, by way of penalty for neglect of duty. The judgment is affirmed.