Futch v. Walker

Court of Appeals of North Carolina

Futch v. Walker

17 S.C.L. 98

DecidedMay 15, 1828

StatusPublished

This text of 17 S.C.L. 98 (Futch v. Walker) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Futch v. Walker, 17 S.C.L. 98 (N.C. Ct. App. 1828).

Pincite

Opinion

Nott, J.

delivered the opinion of the Court.

This was an action on the case for a voluntary escape. The escape was most clearly and satisfactorily proved ; and that it was effected by the consent, and with the permission of the defendant, was v also distinctly established by the evidence. The plaintiff was, therefore, intitled to a verdict; but as there have been two concurrent verdicts for the defendant, if the case had depended altogether upon the evidence, perhaps the Court might not have felt bound to give the party another hearing. In a case sounding altogether in damages, even though the jury may find for the defendant when they ought to have found for the plaintiff, yet as they are at liberty to give merely nominal damages, the Court will not always grant a new trial on account of the costs.

But I do not concur in opinion with the presiding Judge, “ that the sheriff was only responsible for as much as Wood was worth at the date of the judgment.” The sheriff had been guilty of a most gross and unpardonable violation of duty. And the jury were authorized to have given damages against the defendant, to the full amount of the verdict against Wood, by way of punishment for the violation of the highly public trust reposed in him. They are not always bound to go to that extent. They are at liberty, according to circumstances, to mitigate the damages. But they are not to be restrained to the amount of. property which the party may happen to lie worth. A public officer ought to be taught that he is not at liberty to suspend the law with impunity. Prima facie, I think that a sheriff, who has been guilty of a voluntary escape ought to be liable to the whole extent of the debt; and it is only when circumstances of extenuation appear in his behalf, that the jury ought to give less. Certainly it ought not to be inculcated, as a rule of law, [100]*100that he is responsible only for the value of the property which the party escaping is supposed to be worth.

I am of opinion, therefore, that a new trial ought to be granted.

Motion granted.

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Nott, J.

delivered the opinion of the Court.

This was an action on the case for a voluntary escape. The escape was most clearly and satisfactorily proved ; and that it was effected by the consent, and with the permission of the defendant, was v also distinctly established by the evidence. The plaintiff was, therefore, intitled to a verdict; but as there have been two concurrent verdicts for the defendant, if the case had depended altogether upon the evidence, perhaps the Court might not have felt bound to give the party another hearing. In a case sounding altogether in damages, even though the jury may find for the defendant when they ought to have found for the plaintiff, yet as they are at liberty to give merely nominal damages, the Court will not always grant a new trial on account of the costs.

But I do not concur in opinion with the presiding Judge, “ that the sheriff was only responsible for as much as Wood was worth at the date of the judgment.” The sheriff had been guilty of a most gross and unpardonable violation of duty. And the jury were authorized to have given damages against the defendant, to the full amount of the verdict against Wood, by way of punishment for the violation of the highly public trust reposed in him. They are not always bound to go to that extent. They are at liberty, according to circumstances, to mitigate the damages. But they are not to be restrained to the amount of. property which the party may happen to lie worth. A public officer ought to be taught that he is not at liberty to suspend the law with impunity. Prima facie, I think that a sheriff, who has been guilty of a voluntary escape ought to be liable to the whole extent of the debt; and it is only when circumstances of extenuation appear in his behalf, that the jury ought to give less. Certainly it ought not to be inculcated, as a rule of law, [100]*100that he is responsible only for the value of the property which the party escaping is supposed to be worth.

I am of opinion, therefore, that a new trial ought to be granted.

Motion granted.

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Bluebook (online)

17 S.C.L. 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/futch-v-walker-ncctapp-1828.