Opinion
(December Term, 1851.)
Although a sheriff may have trover or trespass for goods seized in execution and taken from him by another, his deputy cannot. The law vests the property in the sheriff, because he becomes liable for the goods and the debtor is discharged. But the law charges the deputy with no duty to the creditor, and if he makes default in serving an execution, he cannot be sued for it, but his principal only. In such a case the deputy is not a bailee, as to the possession, but is merely a servant of his superior, and holds for him, and therefore has no action himself.
(19) APPEAL from the Superior Court of Law of DAVIDSON, at Fall Term, 1851, Ellis, J., presiding.
Gilmer and Miller for plaintiff.
No counsel for defendant.
This is an action of trover for a horse, and was tried on the general issue. The plaintiff was deputy sheriff, and had a fieri facias on a judgment in favor of one Hoffman against one Horne, by virtue of which he seized the horse. He did not, however, take the horse out of the possession of Horne, and the latter sold it to the defendant a few days afterwards, and, upon demand by the plaintiff, the defendant refused to give the horse up. Counsel for defendant insisted that the action would not lie, because the plaintiff did not keep the possession of the horse, but left it with Horne, from whom defendant purchased; and also because the defendant, if liable at all, was liable at the suit of the sheriff, and not of the plaintiff. But the court instructed the jury that, upon these facts, the plaintiff was entitled to recover; and, after a verdict and judgment against him, defendant appealed.
Although a sheriff may have trover or trespass for goods seized in execution, which are taken by another, yet his deputy cannot. The reason why the sheriff has the action is that the debtor is discharged and the sheriff becomes liable to the value of the goods, and, therefore, the law vests the property in him. Wilbraham v. Snow, 2 Saund., 47. But the law charges the deputy with no duty to the creditor. If he makes default in serving the execution, he cannot be sued for it, but his principal only. On the contrary, when he takes goods on execution, the sheriff becomes answerable for their value to the creditor, and hence the property vests in the sheriff and not in the deputy. It was suggested that the deputy held as the bailee of the sheriff, and thus had a special property. He, however, is not a bailee in (20) the sense of having a possession of his own, but he is merely the servant of his superior, and holds for him. The plaintiff, therefore, has no property in the horse, and cannot have this action.
PER CURIAM. Venire de novo.
Cited: Willis v. Melvin, 53 N.C. 63.