State ex rel. McLaurin v. Buchanan, 60 N.C. 91, 1 Win. 91 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 91, 1 Win. 91

The State on the relation of DUNCAN McLAURIN v. WILLIAM BUCHANAN et al.

The provision of 3rd section of the 78th chapter Bevised 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 juris>’ietion of a justice of the peace, and' do.es* aot apply irr cases of norr-colleetionof process'issuing: from ©burtt.

Debt on Sheriff’s official bond, tried before Bailey, J., at >the Fall Term, 1862, of Richmond Superior Court.

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 ii. 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 debt while the sheriff Reid the execution, and continued to be so, and at the time ■of the trial, were well able te.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. Yerdict and judgment for the plaintiff. Appeal by the defendants.

No counsel for the plaintiff in this Court.

Shepherd, Leiteh and McDonald, for defendants.

Matoy, J.

The measure of damages laid down by the 'Court below, is, upon the case stated, erroneous. The case of The State ex rel. Wood v. Skinner, 3 Ired. 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., chap. 78, section 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 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 entrusted, 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 recordy the speedy eollection of these-being already ensured by sufficient guards and penalties.— These latter are not claims put into the sheriffi’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 the case of Wood v. Skinner, stands — is applicable to the case- before us, and. disposes of it..

Pee Curiam, Venire de novo.