This was an action of trespass de bonis asportatis.
The plaintiff alleged that he was in the possession and owned a stock of merchandise, on 28 June, 1847, when they were taken from him by one Exum, who professed to levy upon them in pursuance of an illegal attachment, sued out by the defendant Britt, and that he did the act as deputy of the other defendant, Edmundson, who was at the time the Sheriff of Greene County when the goods were taken.
The defendants pleaded severally the general issue and justification.
It was proved by the witnesses that the plaintiff was the owner and in possession of a stock of dry goods, groceries, and *Page 279 a variety of articles of merchandise in the town of Snow (384) Hill and county of Greene, on 28 July, 1847.
It was also proved that on that day the defendant Britt sued out an attachment against the property of the plaintiff for the sum of $450. It was issued by a justice of the peace, directed to "any constable or other officer" of Greene County, and made returnable before the justice issuing it, or any other justice of the peace for Greene County.
This attachment was placed in the hands of one Exum to execute. Said Exum was at the time a constable in Greene County, and sometimes acted as deputy Sheriff for the defendant Edmundson, but only when specially deputized. It was also proved that the entire stock of merchandise of the plaintiff was taken from his possession by the said Exum, who professed to levy upon the same under said attachment. It did not appear that the said Exum had any valid process against the plaintiff on 28 July, 1847, but it did appear that on the following day, the 29th, he had other regular attachments authorizing him to levy on the property of the plaintiff.
The witnesses differed as to whether the property was taken, under the defendant Britt's attachment, upon 28 or 29 July of said year. Two witnesses stated that it was on the 29th, and one stated that it was on the 28th; and the levy indorsed upon the attachment itself, which was subsequently returned to the County Court, was dated as having been made on 28 July, 1847. By a record introduced by the plaintiff it appeared that the said attachment was returned into the Court of Pleas and Quarter Sessions for Greene County at its next regular term after July, 1847, to wit, in August, 1847, when the defendant Britt applied to the court to order it to be docketed, and for (385) leave to amend by making the attachment returnable to the said Court of Pleas and Quarter Sessions at its said term, and for leave to amend the officer's return, and the direction of the attachment. The court ordered the case to be placed upon the docket, and allowed the amendments to be made, as moved for, and they were actually made, from which order of amendment the plaintiff took an appeal to the Superior Court. The return upon that attachment, as amended, as appeared from said transcript of the record of said court, recited that said attachment had been executed by levying upon the aforesaid property of the plaintiff on 28 July, 1847, and was signed "Haywood Edmundson, sheriff, by James E. Exum, deputy sheriff." It appeared from the record that the defendant Edmundson resigned his office of sheriff on Tuesday of the term, *Page 280 when another person was elected, and the amendments to said attachment were allowed on Wednesday of the same term of the court, and that the first return was indorsed by Exum, as constable, upon the said attachment. Upon the question of damages the plaintiff called John S. Hardie, who testified that the stock of goods which the plaintiff had on hand when they were taken by Exum was worth between $4,000 and $5,000. Joseph Dixon, a witness, thought the goods were worth from $3,000 to $4,000 when Exum took them. The plaintiff proposed to show, for the purpose of recovering vindictive damages, that he had been forced by a body of armed men to leave his storehouse and goods at Snow Hill, on 27 July, 1847, and that he was subsequently kept away by the same means, and that these facts, and the cause of his absence, were known to these defendants and said Exum, the deputy of the defendant Edmundson, when the said attachment was sued out on the next day, and the (386) goods taken by Exum. The defendants objected to the evidence, but it was admitted by the court.
The defendants introduced evidence of regular and valid process by attachment, placed in the hands of Exum on 29 July, 1847, against the plaintiff's property.
The defendants also called a witness to prove that when Exum took the property of the plaintiff under the attachment of the defendant Britt, he was acting as constable, and not as the deputy of the defendant Edmundson. Upon objection on the part of the plaintiff, the court expressed the opinion that it was immaterial how the fact was, as the return of the defendant Edmundson to the County Court (which is heretofore set forth), after the amendment was allowed, amounted to an acquiescence in the trespass which had been theretofore committed by the said Exum, when professing to act under the said attachment, if the act was a trespass; that it appeared from the record of the said court that the return was made by the defendant Edmundson through Exum, his deputy; and the return, thus appearing of record, was full and conclusive proof that it was the act of Edmundson, and he could not now be heard to deny it, at least so far as the fact of its being his return. And by this act of record he assented to and adopted all the previous acts of the said Exum done under the said attachment. The evidence was not heard. It was proved by the defendants that a part of the said goods came to the hands of one Vass, with the assent of the plaintiff, and another portion to the hands of one Williams, under orders of the County Court of Greene, by consent of parties, made in the case of the defendant Britt against this plaintiff relative to the said attachment returned to the said *Page 281 court; and that another part came in the same way to the hands of one Moses Patterson. It was also proved by the defendants that a part of the said goods had been sold by the said Exum and the proceeds applied to the payment of regular attachments placed in his hands on 29 July, 1847. The defendants (387) also introduced evidence of the value of the several amounts of goods that came to the hands of the respective parties above named, and the amount applied by Exum to valid attachments.
The court charged the jury that the plaintiff's right to recover depended entirely upon the question whether the goods were taken on 28 or 29 July, 1847. If they were taken on the 29th, they should return a verdict for the defendants, because on that day Exum had regular and valid process in his hands authorizing him to take the property of the plaintiff, and it mattered not, though he professed to take under other and void process. But if they should be of opinion that the property was taken upon 28 July, then the plaintiff would be entitled to recover, because the attachment under which Exum professed to act was void, and did not authorize him to take the property of the plaintiff, and it did not appear on that day he had any regular and valid process; and because these defendants were both responsible for the acts of Exum, it appearing of record that they both, subsequently, acquiesced in these acts, the defendant Edmundson by the return of the attachment and the other defendant, Britt, by accepting the return and prosecuting the said suit against the plaintiff; that if they believed the plaintiff entitled to recover, the proper measure of damages would be the value of goods at the time they were taken, deducting the value of goods that came to the hands of Vass, Williams and Moses Patterson by the consent of the plaintiff; that they might also allow such sum as they should think reasonable for the injury sustained by the plaintiff by being deprived of the use of his property since it was taken; that if they thought the circumstances of the case would justify them, they would be at liberty to give vindictive damages by way of punishment to the defendants; that they should make no deduction for any of the goods appropriated by Exum (388) to any purpose without the consent of the plaintiff, even though the same might have been appropriated to valid claims in his hands against the plaintiff.
The jury returned a verdict for the plaintiff. The defendants moved for a new trial for error in the instructions to the jury, and for the exclusion of proper evidence and the admission *Page 282 of illegal testimony. Rule discharged, and a judgment, from which the defendants appealed to the Supreme Court. The court charged, "that the defendants were both responsible for the acts of Exum, it appearing of (389) record that they both subsequently acquiesced in these acts — Edmundson by the return of the attachment and Britt by accepting the return and prosecuting the suit."
There is error in holding Edmundson responsible for the acts of Exum, and giving to the return this conclusive legal effect. How far the superior is bound by the acts of the deputy is not the question; but it is, Did Exum levy upon the goods of the plaintiff as the deputy of Edmundson? The original return, made by Exum, was a levy by him as constable. The County Court permitted him to amend so as to make it a return of a levy by Edmundson, as sheriff, by Exum, his deputy. To this amended return is given the conclusive effect of a record, whereby it is established that Exum made the levy as deputy, and, consequently, that Edmundson is responsible in the same manner as if he had done the act himself.
In what light the question would be viewed if Exum had been a regular and known deputy, without any other capacity, is not before us. The case states that he was a constable, who sometimes acted as deputy, but only when specially deputized; no express deputation is pretended, and, if he can be made a deputy at all, it must be, as an inference, from the fact of his assuming that character in making the amended return. This was done after Edmundson went out of office, and he is not shown to have had notice of it. How the assumption in a single instance, without the knowledge of the principal, can conclusively establish the character assumed, so as to make the superior liable in trespass, we are not able to conceive. His Honor, it seems, gave to the return this conclusive effect, by treating it as a record, which imparts absolute verity. He was mistaken in his premises. A record states the acts of the court itself. The acts of a ministerial officer, as a constable or sheriff, in making returns on warrants and writs, although required by law to be returned into a court of record, do not make a (390) part of the record, are only prima facie taken to be true, and may be contradicted and shown to be false, antedated, etc. Smith v. Low, 27 N.C. 197. If such a return is *Page 283 not conclusive as to the acts, much less is it conclusive as to the character of the person who makes it in the name of a supposed superior.
The amended return, if evidence at all, was at most only prima facie evidence that Exum was the deputy, and there are many circumstances tending to rebut it: he was a constable — never acted as deputy without a special deputation; he made the levy and the original return as constable, and the order allowing the return to be amended was vacated by an appeal.
His Honor ought to have submitted the question to the jury, and it was error to hold the fact conclusively established by the record. As the case will be tried again, it is proper to notice an error on the question of damages. His Honor held that the damages could not be abated in respect of the regular attachments, levied on 29 July, and under which a part of the property was subsequently sold and the proceeds applied in discharge of the debts sued for. In this there is error. The levy created a lien on the property, and authorized the officer to retain an amount sufficient to satisfy the judgments, without the consent of the plaintiff. His Honor seems to have confounded this case where there was a lien with that of an officer who sells under one execution and claims a right to apply the excess of sales to a note or other debt upon which there was no judgment, execution and levy; here there was a levy which created a lien. We give no opinion upon the subject of vindictive damages, because the case does not raise the question. The damages were $2,800, they are not stated to be vindictive, and for anything that is stated, it may be that this sum was the balance of the value of the goods, after deducting the sums allowed for the amounts which, with the consent of the plaintiff, went into the hands of Vass, Williams and Henry Patterson. These (391) amounts are not given.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Simpson v. Hiatt, 35 N.C. 472; Isler v. Murphy, 71 N.C. 438;Walters v. Moore, 90 N.C. 47; Curlee v. Smith, 91 N.C. 179. *Page 284