12 N.C. 157 | N.C. | 1827
On the trial the evidence was that the executors of Holliday recovered three several judgments against one Brand, of (158) which the whole amount was $300, on which fi. fas. issued, tested of February and returnable to May, 1820, on which Eastwood, the sheriff, returned that he had levied upon a tract of land and several negroes, which remained unsold for want of bidders.
On one of these returns a venditioni exponas issued, returnable to August, 1820, on which the sheriff returned that no sale was made for want of bidders. It did not appear in evidence that any other executions issued upon these judgments or either of them, but on 27 February, 1821, Eastwood sold the land. *103 levied upon for the sum $1,500, and the negroes for a like sum; and a small balance remaining in his hands of the proceeds of the sale, after satisfying the judgments as well as other demands upon Brand, Eastwood came to a settlement and accounted with him therefor. The above judgments not being paid by the sheriff, the question was whether the plaintiff had shown a breach for which the defendants were liable upon the bond of 1820.
His Honor, Judge Daniel, who presided, instructed the jury that if no other executions issued than those mentioned above, the plaintiff had shown no breach; that it was incumbent on the plaintiff, if any other execution did issue, to produce evidence thereof; and, further, that if other executions had issued, founded on the levy returned to May, 1820, as writs of venditioni exponas, and under these sale was made, such sale related to the levy, and such new writ only authorized or required the completion of the former execution, of which the levy was the commencement, and therefore no breach was shown of the condition of the present bond.
Under these directions the jury found for the defendants, and a rule for a new trial being discharged and judgment given, the plaintiffs appealed.
I think the charge of the judge to the jury in the Superior Court was correct. The question submitted to the Court is somewhat confused, because Eastwood was sheriff both in 1819 and 1820. Let us suppose that some other person was sheriff in 1819, and that the executions of fieri facias issued into his hands and were returned no sale for want of bidders to May court, 1820, at which court Eastwood was appointed sheriff. From that court the plaintiff in the executions thought proper to issue writs of venditioniexponas; it is proper that these writs should issue to the first who had levied on the property, because an execution is said to be an entire thing, and he who begins it must end it (Anonymous,
PER CURIAM. Judgment affirmed.
Approved: Barker v. Munroe,
(160)