
    C. G. Graham v. David Durant, Sheriff.
    
      Before Mr. Justice Richardson, at Sumter, Fall Term, 1834.
    In an action a* gainst the sheriff for negligence in not levying an execution,theju-ry arc at liberty to givetheir verdict for the full amount of the execution, without regard to the valueofthedebt- or’s property; and the more 50, where the debt- or’s property was sufficient to pay the debt, and might, with duo diligence, have been taken.
    This was an action on the case, to recover damages for negligence in office as sheriff of Sumter district, in not making the money on an execution, in favour of the plaintiff, against one John Gayle.
    The facts in evidence were these: — The plaintiff lodged the execution in the sheriff’s oflice in March, 1832, with peremptory orders to proceed thereon forthwith, In April following, Cockrell, the deputy sheriff, taking with him the execution, went to Gayle’s house, in order to make a levy under it. Gayle offered him a levy, but said that he could not give him possession of the property that day, and Cockrell replied that he could not levy without getting possession. Gayle then said he would go to Sumterville, and make some arrangements. Cockrell saw three or four negroes in a lot hard by, and en-quired of them to whom they belonged; they told him to Ra-gan, (the brother-in-law of Gayle.) He made no levy, and returned to Sumterville. Gayle came there a few days after-wards, and was refused indulgence. Cockrell went again to Gayle’s, saw two or three negroes in the field, passed them and went to the house, and when he returned the negroes were gone. A few days before Gayle went off, Cockrell went to his house, where he saw none but an old negro. On being told by Gayle’s daughter that her father had gone to Sumter-ville, to make some arrangements about the execution, he returned, and there met Gayle, who agreed to give a levy of all his property, and security for its delivery. Accordingly, a few days afterwards, Cockrell went to Gayle’s house, with a bond prepared; but Gayle had gone off with his negroes and other property; he then levied on the land. On the next day he returned, expecting that the property might be concealed, but found none. lie afterwards heard that Gayle had left two negroes behind, which he hunted for but could not find. It appeared that Gayle had a plantation and twelve or fourteen negroes, besides horses, cattle, and other personalty, and on his moving off had left behind him two valuable negroes, who remained for some months in the district. He went off in May, 1832: his land was afterwards sold, and the proceeds applied to an execution older than the plaintiff’s.
    
      His Honor charged the jury, that they were to enquire whether the sheriff had exerted due and legal diligence in his attempts to make a levy on Gayle’s property : He intimated his opinion that it was the duty of the deputy, Cockrell, to have accepted the first offer of Gayle to give him a levy; or, at least, to have informed himself what he intended to offer, and to have either levied on the negroes he then saw, or to obtain further information in regard to them : — that on his second visit, and after indulgence to Gayle had been refused, ho should not have passed the negroes in the field, and on finding them gone, he should have made further search ; and that on learning that Gayle had gone off with his negroes, he should have pursued : and, finally, he should have levied on the ne-groes left behind. If, from the evidence, the jury should believe Cockrell had not used proper diligence, they should find damages according to the loss the plaintiff had sustained by such neglect, which depended on the value of Gayle’s property subject to the plaintiff’s execution.
    The jury found a verdict for the plaintiff of $2,900, the whole amount of the plaintiff’s execution.
    The defendant now moves for a new trial, on the grounds:
    1. That the presiding judge erred in charging the jury that the deputy should have taken the first levy of negroes offered him, as Gayle refused to give possession, and declared ho should not then have them.
    2. That the verdict exceeds the value of the property on which the sheriff could have levied.
    
      Potts, for the motion.
    The deputy could not get possession when Gayle offered the levy, for by making the levy, he would have made the sheriff liable, even if he never afterwards got possession ; and as regards the negroes he then saw, he got all the information from them he could get then. Who else could he then apply to ? And was he to levy on negroes who said they belonged to another, without knowing certainly they were Gayle’s? The sheriff is only liable to the extent of the property on which he could have levied, and according to the evidence, he never could have levied on but three, or at most four negroes ; but the verdict is for an amount greatly beyond their value. Futch v. Walker, 1 Bail. 98.
    
      Wm. F. Desaussure, contra.
    For a long interval, the sheriff could have levied on several negroes, and omitted to act, until the debtor went off with his property. He was culpably negligent, and should be held liable for the amount of the exe. cution.
    
      Moses, in reply.
    The deputy was not bound to have levied in the first instance, when he could not have gotten possession. The damages are excessive. There was no evidence of Gayle’s solvency, and the defendant should only be Hablo for the negroes on which he could have levied.
   Johnson, J.

The fact of negligence is, I think, very satisfactorily made out; and the counsel for the motion has rested it mainly on the ground that the damages are for the whole amount of the execution against Gayle.

In the case of Futch v Walker, 1 Bail. 98, which was an action against the sheriff for negligence, Mr. Justice Nott, who delivered the opinion of the Court, says that the jury were at liberty to give the full amount of the verdict against the plaintiff’s debtor, for a violation of the public trust reposed in him, without regard to the value of the debtor’s property. The principle of that case applies here in all its force, and this case receives additional strength from the circumstance that Gayle’s property was abundantly sufficient to pay this debt, and, with due diligence, might probably have been taken in execution.

Abuses and negligences in the sheriffs’ offices, are the subject of general, and, I believe, of well founded complaint; and it is not a matter of surprise that the jury should have used this occasion to manifest their disapprobation of such conduct, by finding against the defendant the whole amount of the plaintiff’s demand against Gayle, and it is, perhaps, a fit case for such an example.

O’Neall, and Harpet, Js. concurred.  