President of the Bank of Newbern v. Pullen , 15 N.C. 297 ( 1833 )

1st. That the defendant has failed to make return of certain writs of execution, issued at the instance of the plaintiff against A. S. H. Burgess and others.

2d, for a false return.

3d, upon the special case or the facts stated.

On the trial before Martin, J., at Wake Spring Term, 1830, the plaintiffs proved that they obtained a judgment in Wake County Court, at August term, 1824, against A. S. H. Burgess, principal, and Wm. Hill and T. Hunter sureties, for (298) $980, with interest on $950 till paid; that he sued out a writ of fi. fa. on said judgment to November term, 1824, and placed it in the hands of the defendant, then sheriff of Wake, who levied the same on the land and slaves of Burgess, 4 October, 1824, and closed his return by saying, "all of which property is said to be under deed in trust, except Coy, Preston and Austin." This execution, with the levy endorsed, was returned to the office of the court.

The plaintiff then sued out a writ of venditioni exponas, on this judgment, returnable to February Term, 1825, which was likewise delivered to the defendant, as sheriff, and was returned by him with the following endorsement: "Indulged by order of the plaintiff. T. Pullen, Sheriff." The plaintiff then sued out an alias writ of venditioni exponas, on 1 April, 1825, returnable to May Term, 1825, which also came into the hands of the defendant, and upon which he returned, "sale of the within property postponed by order of the plaintiff." The defendant continued sheriff, until May Term, 1825.

Several other executions in favor of other plaintiffs against Burgess were produced in evidence, by virtue of which, the sheriff sold negroes Coy, Preston, Austin and Albert and applied the proceeds of this sale to the satisfaction of those executions, except $145, which he returned "by agreement of all persons interested, was paid to A. S. H. Burgess, the balance of the property within named, viz., the lot No. 16, etc., and negroes Harry and Polly being claimed by virtue of a deed of trust, to secure the judgment of the Newbern Bank, and the other property within named, being covered by other deeds the same was not sold by me. T. Pullen, Sheriff."

Upon the facts disclosed by the executions, etc., the Judge instructed the jury that the plaintiffs had not produced evidence to support their action; in submission to which opinion, the plaintiff submitted to judgment of nonsuit. A rule for a new trial being discharged, the plaintiffs appealed. I cannot think such a return as this evidence for the sheriff. It is in his own discharge entirely; and is like one, that he had paid the plaintiff the money, which surely would not be proof of the fact. If it be good that far, it is making it so altogether; because it alleges a matter not susceptible of contradiction. The payment might have been in private; and so may the order for indulgence. It is but a slight inconvenience to the sheriff, to call witnesses, or to take a permanent evidence in writing of the fact; but if his own return will do, it is opening the door to great abuses. It may be said that payment to the party is not an answer to the writ, but only an excuse for not making one. So is this; it is a reason why he did not execute the process, and not showing how he has done it. In other cases, where his return has been held evidence, the question was either between third persons, between whom he stood indifferent, or when he charged himself. If he returns satisfaction, he concludes all persons, because he makes the debt his own. A return of a levy is evidence for him in an action of trover for the property seized, upon this ground. If he return a rescue, it is the same thing, because that does not excuse him, unless it be by the public enemies, which must be a matter notorious, and then easily susceptible of proof by witnesses; and as to process upon it, the Court only gives to such a return sufficient credence to grant the attachment, but not to convict or punish under it. Nulla bona is a negative return, and in its nature throws the proof on the other side, who must prove goods of the debtor, before he can subject the sheriff, no matter what the return was. In Gyfford v. Woodgate, 11 East. 297, the action was between the parties to the execution, between whom the sheriff was indifferent. It does not follow, because his return was read in that suit, and indeed was part of the plaintiff's case, that it would have been received if the action had been against the sheriff himself, for making a second seizure before he had sold the property first seized. In Bradley v. Wyndham, (300) 1 Wils. 44, the counsel for the sheriff did not rely upon a return of the sheriff, but proved the fact that the fraudulent instructions were given by the plaintiff's attorney. And so in Smallcomb v.Buckingham, 1 Ld. Raym. 251, the sheriff did not return, that the plaintiff did not apply for a warrant on his fi. fa. but showed the truth by other evidence and that the plaintiff in the other fi. fa. proceeded to execute his writ. I admit that between the plaintiffs in the two writs, the return is evidence; because if true, it ought to postpone the dilatory creditor; and if the sheriff cannot make it appear to be true, he is justly liable to the creditor, whose preferable right of satisfaction that return has postponed. The truth is, that if the sheriff had returned nulla bona, as he may properly do, when the creditor postpones the sale and another then proceeds to sell (which is the regular mode of making the return), then the facts must have been proved by witnesses in justification of the sheriff. The question is, whether after charging himself by the levy and entering it on his writ, he can discharge himself, not by entering nulla bona generally, which opens the whole case to evidence on both sides, but by a special return of a private thing between him and the plaintiff, to which the other can probably have no opposing evidence. I think not. The sheriff ought to be held to a strict return according to the writ; or if he be permitted to excuse himself for not obeying its precept, he ought to be prepared to prove the excuse by other evidence than his own testimony. He now makes an affirmative return, which cannot well be negatived. No precedent in point in found; and I think there ought to be a new trial.

PER CURIAM. Judgment reversed, and a new trial granted.

Cited: Smith v. Spencer, 25 N.C. 267.

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