
    STATE UPON THE RELATION OF WILLIAM MURPHY v. HENRY TROUTMAN, et. al.
    
    “Where a sheriff had a writ against a resident of another State, who was known "by the sheriff to be in his county upon a temporary visit, and such sheriff was also informed by one of whom he enquired, that the person sought would be at a particular place, near the county line, on a certain day mentioned, on his way out of the State, and he failed to be present on the day mentioned, when, if he had been there, ho might have arrested the defendant, and showed no reasons for not going there, it was IMd to be negligence.
    Where a sheriff is shown to be guilty of negligence in failing to serve a writ, the onus of of showing that the defendant in the writ was insolvent, devolves upon- him.
    Where a sheriff negligently failed to arrest a person upon a writ for debt, and it appeared that such person had some property in a distant State, and had numerous friends and relations in the county, whom he had come to visit temporarily, it was Held to be error in the Court to instruct the jury that they should give only nominal damages.
    ActioN of debt upon the official boutl of tbe defendant as sheriff of Iredell county, tried before Bailey, J., at the last Spring Term of Bowan Superior Court.
    Tbe relator, Murphy, bad taken out a capias ad sat-isfaciendum, against one Julius W. Houston, for the sum of —-—- dollars, which came to tbe bands of tbe defendant on tbe 4th day of September, 1855. Houston was a resident of the State of Alabama, and on a visit to bis friends and relations, in tbe county of Iredell, at tbe time tbe writ was put into tbe bands of the sheriff. The sheriff did not know Houston, and enquired of Mr. Roseborough where he was to be found ; the latter informed him that he was understood to be staying at the house of his brother, Hr. Houston, about two and a half miles from Statesville. This information was given him in Statesville. The sheriff lived about seven miles from States-ville. Mrs. Thom, who was an aunt of Houston, testified that she lived about twenty miles from Statesville, near the county line; that the sheriff made enquiries of her about Julius Houston, stating that he wished to see him on business; she told him, that she had seen him, and she expected that he would be at her house on friday evening, or monday following, on his way to Alabama. He came to her house on mon-day as she had told the sheriff. He rode up in a carriage with his mother, whom lie left at the house, and went on to the house of a neighbor about a mile and a half off; he returned soon afterwards, went into Mrs. Thom’s house about 12 o’clock in the day, took a sup of coffee, staid a short time, and then proceeded on his way to Alabama. It was further in evidence that the sheriff came to Statesville on the monday above spoken of. He met Houston and his mother, on his way to that place. When he arrived at Statesville, he was informed that Houston had left the place about two hours before his arrival, and that the persons whom he had met were Houston and his mother. There was no evidence that the sheriff was at Mrs. Thom’s on monday. The return of the sheriff was that Houston was “ not to be found.”
    The plaintiff then read the deposition of Julius W. Houston, who stated that he had no money, or other property, in the county of Iredell, at the time he was there ; that he had some money and effects in the State of California when he was in Iredell, and at the time the deposition was taken, but did not state the amount.
    The Court was of opinion that the sheriff was guilty of negligence in not serving the writ, and the plaintiff was entitled to some damages, but not substantial damages, inasmuch as he had not proved that Houston had the ability to pay the amount due him. The plaintiff and defendant both excepted.
    The jury found a verdict for the plaintiff for sixpence damages, and both parties appealed.
    
      Boy den, for the plaintiff..
    
      Osborne, for the defendant.
   Pearson, J.

We concur with his Honor, that the defendant was guilty of negligence ; but we differ from him, in respect to the question of damages. As the plaintiff had put the defendant in the wrong, he was liable for such damages as had been sustained thereby ; which, prima facie, was the amount of the debt that was lost, and it was for the defendant to mitigate the damages, bj proving that the effect of his wrongful act was not so great,, because the debtor, who hau been suffered to leave the State, liad not the ability to pay the debt, and his arrest would not have enabled the plaintiff to realize the amount, or any part thereof; or, if apart only could have been thereby realized, then, to limit his liability to that amount. In Sherrill v. Shuford, 10 Ired. Rep. 200, it is said “the true inquiry is, has the defendant by his negligence deprived the plaintiff of any legal means of securing the payment of his debt?” In our case, the debtor had money and effects in the State of California; an arrest would have been a legal means of forcing- him to assign that fund for the benefit of the creditor, and the principle is not affected by the circumstance that California is at so great a distance. The principle is the same as if the fund had been in an adjoining State, or in our own State. The distance affected only the degree of facility with which the fund could be made available, and not the principle upon which the creditor’s light depended.

Put as the defendant was put in the wrong, the plaintiff was entitled to assume higher ground. The debtor, it appears from the evidence, had brothers and other near relations in the county of Iredell. If his arrest would have induced them to become bail, that would have been a legal means of securing the payment of the debí, and the negligence of the defendant has deprived the plaintiff of an opportunity to try it.

Upon the question, whether the loss shall fall on the plaintiff, who has been vigilant, or on the defendant, who has neglected his duty, it is not a sufficient answer to say the contingency of securing the debt in that manner was too remote. The plaintiff “quickened the diligence” of the defendant, and ought not to have been deprived of the chance of thereby securing his debt. At all events, upon the question of damages he had a right to have it submitted to the consideration of the jury, with instructions that if they were satisfied, from all the circumstances, that the debtor, if arrested, would have given bail, or if imprisoned, would have assigned his money or effects in California, or otherwise secured the debt, or some part of it, they ought to assess corresponding damages.

There is error. Venire de novo.

PeR CujbiaM. Judgment reversed.  