
    Ionadab Gains, vs. Samuel Downs.
    
      Jffetion on the ease. The defendant, a sheriff, levied an execution of the plaintiff against one K. on property which he left in K’s possession, who left the state with it and failed to produce it on the day of sale. It was shewn in defence, that there were in. defendants office, executions against K. older than the plaintiff’s', which would have taken the whole of the proceeds, if the property had been sold. Held that the plaintiff had sustained no injury, and was not entitled to recover.
    
    It appeared in evidence in this case, that the plaintiff had iSrecovered a judgment against James Kendrick, on which he bad sued out execution, which was placed in the hands of thé defendant, who was then sheriff of Laureif s district'. He levied on a wagon and three horses, but suffered them still to remain in the hands of Kendrick, to he produced when he should require them. Kendrick, however, instead of producing them on the day of sale, took a load of flour and went off to Augusta, and- never returned. The defendant alleged, by way. of de-fence, and actually proved, that there were older executions in the office, to a greater amount than this property was worth, which would have taken the proceeds, if the property had been sold, and that the plaintiff, therefore, had sustained no injury. The testimony was left to the jury, with instructions from the court, that if they were of opinion .that the older executions would have swallowed up the whole of the property, had it been sold, so that there would have been nothing left for the plaintiff, that he suffered no injury and was not entitled to recover. The jury appeared to be of that opinion, ancl found a verdict for the defendant.
    A motion was made for a new trial, on the ground of misdirection of the court.
   The opinion of the Court was delivered by

Mr. Justice Mott.

There is no doubt hut tliat the defendant laid himself liable to an .action, by his misplaced confidence in Kendrick, whose property he had taken in execution. But he was only liable to them who were injured by his neglect. Indeed, it cart scarcely be called neglect; it is rather a legal responsibility, which he has incurred by the misconduct of an agent, who had betrajmd his confidence. There can be no question, hut that when a sheriff takes property in execution, he may place it in the hands of an agent to keep, subject to his order. And if he thinks proper, he may employ the party himself for that purpose. It affords him an opportunity of indulging toward an unfortunate debtor tlie benevolent feelings of which those clothed with a little authority, are too often unmindful. It saves to the debto. the expense which he might otherwise incur. It allows him the enjoyment of the property, until the time shall .arrive, when perhaps he will have none to enjoy; and it may eyen afford him the means of paying the debt, without such a sacrifice. The sheriff is, however, responsible for the conduct of his agent; but he is not answerable .to every man in the community, it is only those who have been injured to whom lie is amenable. The plaintiff lias been no sufferer, and therefore can maintain no action.

The motion is refused.

Colcock, Richardson, Johnson, Gantt — Justices concurred.  