State ex rel. Howell v. Edwards

32 N.C. 242

• Court: Supreme Court of North Carolina
• Decided: August 15, 1849
• Status: Published

Opinion

Ruffin, C. J.

If the constable would be liable for a false return on these facts, he must likewise be Rabie under the Statute, for want of due diligence in not taking out an execution, or otherwise making the money, The Court holds clearly, that he would have been liable for returning nulla bona in this case, if a fieri facias had been in his hands. The return would have been false in point of fact, as Noland had property. Then, he was not to wait for a communication from the creditor, as to the person or residence of the debtor, or the particular property in his possession. If he needed information on those points, it was his duty to make énquiry before he ventured on a return, false in fact. Parkes v. Alexander 7 Ire. 412. Dyke v. Duke, 4 Bing. N. C. 197. But here it is not pretended, that the constable did not know the debtor and his residence, and there was evidence that he had precise notice from the mortgagee of some of the effects, that his claim was discharged and that the property then belonged to Noland, and, of course, was subject to execution. No reputation of insolvency of the debt- or could excuse such indifference to the interests of the creditor and gross neglect of duty.

Pbr Curiam

Judgment affirmed.