Opinion
(June Term, 1863.)
The provision of section 3, chapter 78, Revised Code, giving the whole amount of debt as damages for the failure of an officer to collect a claim put into his hands for collection, when the debtor is solvent, only applies to claims within the jurisdiction of a justice of the peace, and does not apply in cases of noncollection of process issuing from court.
(92) DEBT on sheriff's official bond, tried before Bailey, J., at Fall Term, 1862, of RICHMOND.
The relator gave in evidence a writ of fieri facias issued from the Superior Court of Richmond County against F. McLeod and James McLeod, executors of William McLeod, which came into the hands of Buchanan, as sheriff, in due time, to be collected before the return day; after the return day an alias fi. fa was issued, but the debt was not collected on either of the executions. It was proved that the defendants were amply responsible for the time of the trial were well able to pay the same. Upon these facts, the defendants insisted that they were liable only for nominal damages, and asked his Honor so to charge the jury, but he declined to do so, and instructed them to find the whole amount due. Defendants' counsel excepted. Verdict and judgment for the plaintiff. Appeal by the defendants.
No counsel for plaintiff in this Court Shepherd, Leitch, and McDonald for defendants.
The measure of damages laid down by the court below is, upon the case stated, erroneous. State v. Skinner, 25 N.C. 564, is an authority in point. Upon the reasoning in that case, with which we are entirely satisfied, the relator, in the suit before us, is entitled to nominal damages only. Where the debt is not lost by the officer's negligence, the relator is not entitled, by reason of that negligence, to recover the amount of the debt, and when he does not show any actual injury thereby sustained, he is entitled only to the damages which the law infers without proof, viz., nominal damages. The act of 1844, embodied in the Revised Code, ch. 78, sec. 3, alters the rule of damages declared in Wood v. Skinner in respect to a certain class of official negligences, and is restricted to that class. The statute provides that "When a claim shall be placed in the hands of any sheriff or constable for collection, and he shall not use due diligence in collecting the same, he shall (93) be liable for the full amount of the claim, notwithstanding the debtor may have been at all times, and is then, able to pay the amount thereof." This, manifestly, applies to those claims for debt within the jurisdiction of a justice of the peace, with the collection of which officers were then intrusted, and the penalty here provided was added in that class of cases, probably, upon the suggestion made in the opinion in the case above referred to, where it is intimated that some additional penalty might be required to secure official diligence in the collection of debts within the then greatly extended jurisdiction of a justice of the peace. The statute was not intended to apply to claims collected by process upon judgments in a court of record, the speedy collection of these being already insured by sufficient guards and penalties. These latter are not claims put into the sheriff's hands for collection within the purview of the statute, but are writs or processes upon which execution is to be done and official returns thereof made.
We think, therefore, that the authority of Wood v. Skinner stands — is applicable to the case before us, and disposes of it.
PER CURIAM. Venire de novo.
Cited: Brunhild v. Potter, 107 N.C. 419.