Eldridge v. Spence

DARGAN, C. J. The defendant, Spence, as sheriff, levied on three slaves, the property of the defendant in execution, and delivered two of them to his overseer to be carried to the county jail for .safe keeping. The slaves were not in any manner confined, and one of them escaped and has never been retaken. The overseer endeavored to prevent his escape and ran after him until overcome with fatigue. Upon this evidence the court instructed the jury, that if they believed from the evidence, that the overseer was a trusty man, and had used due diligence to prevent the escape, then the sheriff was not liable. [685] A sheriff is certainly not an insurer of the goods seized by him on legal process, whether final or mesne, and if they are lost or destroyed without neglect on his part, he cannot be held responsible for their value; as if' a chattel die, or goods be burnt without his neglect or fault, he cannot be held liable for them. — Jenner v. Joliffe, 6 Johns. 12; Brownery v. Hanferd, 5 Hill, 588; Bridges v. Perry, 14 Verm. 262. But if the sheriff does not use due diligence to secure the goods and preserve them from waste or destruction, he must be held liable for their value. If lie levy on slaves or cattle and suffer them to remain in such a condition that they may escape from him, if they will, when he had the power so to secure or confine them that they could not make their escape, he must be held liable, for the escape was owing to his neglect. He had the power to secure them so that they could not escape, but he omitted to do so; this omission is neglect, for which he is responsible. Guided by these rules, we are clearly of the opinion that the sheriff is liable for the escape of the slave. He places two under the charge of the overseer, to be conveyed to the county jail — they were not confined in any manner, but could escape if they thought proper, and one did escape. The sheriff must therefore be held liable for his value, for he could have so secured him as to prevent his escape. If the sheriff' thought it necessary to confine two of the slaves in jail for safe keeping, we think he was guilty of neglect in sending them under the control of one man, they not being in any manner confined or restrained of their.liberty. But there is still another reason why he should be held liable. The levy gave him a special property in the slaves, and vested title in him, subject, however, to be defeated upon the payment of the money due on the execution. Pie may yet reclaim the slave, if he can be found, but there is no evidence whatever that any effort has ever been made to regain the possession of him. In the absence of all proof that the sheriff has used any effort to recover possession of the slave since his escape, we are forced to the conclusion, that he has been guilty of neglect. Ordinary diligence required him soon after the slave had escaped, to use all reasonable efforts to retake him, and certainly he must be held liable for the want of ordinary care. As the evidence cannot excuse the sheriff, the court should have [686] instructed the jury, that he was liable for the value of the slave, for taking every fact to be true that the testimony tends to prove, and still they afford the sheriff no protection against the demand of the plaintiff. Nor ean he claim to be exempted from liability because he afterwards made a further levy on two slaves that he had previously levied on by virtue of an execution in favor of the Branch Bank at Montgomery. These two slaves did not yield more than enough to pay the debt due the Bank. The plaintiff’s debt therefore remains unsatisfied, without any fault of his, and he is entitled to the value of the slave that escaped from the sheriff in satisfaction of it. The judgment must be reversed, and the cause remanded. Chilton, J., not sitting.