Shuford v. Cline

Full title: J. H. SHUFORD v. JONES CLINE

Court: Supreme Court of North Carolina

Date published: Aug 1, 1852

35 N.C. 463 (N.C. 1852)

Opinion

(August Term, 1852.)

Where an execution against two does not distinguish which is principal and which surety, the sheriff has a right to collect it from either; and the one from whom it is collected has no cause of action against the sheriff, though he claimed to be only a surety and though the plaintiff in the execution directed the sheriff to collect it from the other.

APPEAL from Manly, J., at Fall Term, 1851, of CATAWBA.

Guion for plaintiff.

Craig and Boyden for defendant.

PEARSON, J.

We concur in opinion with his Honor. The facts do not give the plaintiff a cause of action. He had no legal right, and, consequently, although he may have sustained loss by the course of conduct which the defendant saw proper to pursue, still it was "damnum absque injuria," for there can be no injury unless the party has a right.

Plaintiff's ground of complaint is that he put into the hands of the defendant, who was sheriff, an execution against the plaintiff and one Able and Eli Shuford, and directed him to make the whole sum out of certain property of the said Able, who was the principal debtor; that although the property was fully sufficient, the defendant omitted to make out of it the whole sum set forth in the execution, and after selling a part, permitted the rest of the property to be appropriated and applied to the payment of the other debts of the said Able, by reason whereof the plaintiff was afterwards compelled to pay the balance of the execution. (464)

This shows that the plaintiff has sustained a loss by the conduct of the defendant, but his misfortune is that he had no right to control the defendant, who was responsible alone to the creditor in the execution, and was at liberty to make the money out of any one of the three debtors named in the writ, notwithstanding the directions of the plaintiff to the contrary. We can, therefore, see no ground upon which the plaintiff can make out a cause of action; and, in fact, upon principle it is clear that he has no cause of action, for he had no right, and the defendant was not bound to notice the allegation of his being a surety. He had a right to go by the writ, in which no distinction was made. How far, under the act of the General Assembly, Rev. Stat., ch. 31, sec. 131, provided its provision are attended to, sureties may acquire rights, so as to have a cause of action if a sheriff violates these, is not now before us.

PER CURIAM. Affirmed.

Cited: Gatewood v. Burns, 99 N.C. 360.

(465)