Bagby v. Harris , 9 Ala. 173 ( 1846 )

GOLDTHWAITE, J.

1. The only inode by which the charge given in this case, can be made consistent in all its parts, is to take it as instructing the jury, that if the new sheriff, at some time when the final process was in his hands, could have seized and sold the boat, then, that slight damages only should be given, in the event any were assessed. We incline to think that this is the proper interpretation of what is set out in the bill of exceptions; and we the more readily take this view, because the rule is quite clear, that nominal damages are always proper when a breach of duty is made out, and the extent of injury is not shown by the evidence, and it is scarcely possible the law on this point should have been mistaken. [Loftin v. Williams, 16 Pick. 64; Whittimore v. Colton. 1 Gill, 478.]

2. But even with this interpretation, the charge, in our judgment, involves a serious error. Whenever a breach of duty is made to appear, there is no question that the person in default is answerable in damages to the injured party ¿ to the extent of the injury; but it sometimes happens there is great difficulty in the application of this rule, When the party to whom the duty is to be performed has other remedies of which he may avail himself, without proceeding 'for the breach of duty. Thus it has been held, when the omission of duty was in failing to return a bail bond, that the delivery, or the offer to deliver it, in season to enable the party to prosecute a sci. fa. would reduce the damages to a nominal sum. [Glozer v. Rood, 2 Metc. 490.] And a neglect by an agent to notify his principal of the dishonor of a note, by which some of the parties to it are discharged, does not necessarily cause a damage to the amount of the note, if there be solvent parties remaining bomid upon it. [Bank of Mobile v. Huggins, 3 Ala. Rep. 206.] It was in view of these and similar decisions, that the charge was most probably given, but there is a manifest distinction to be observed when the principle which governs them is to be applied to the failure of an officer to make the money upon an execution, or out of property attached. In either case, the party to whom the duty is due, has proceeded beyond a general liability, and is seeking to have the fruits of a specific lien. If the neglect of duty with reference to such process, is such, that the effect of a judgment appears to be lost, the amount of the judgment so rendered ineffectual, is prima facie the measure of damages for the breach of duty, but even then it may be lessened by evidence of the inability of the debtor to pay, [Welch v. Bartlett, 10 Mass. 476;] or by proof that the attached goods would produce only a part of the sum. We are not prepared to say, that when the default is negligent only, and not wilful, that the damages might not be lessened, if the officer was prepared to show, that the party had refused to take means within his-power to coerce the demand from the original debtor; but, however this may be, we are entirely satisfied, that the damages cannot be mitigated by merely showing, that the original debtor was solvent and able to pay; or that, in the attempt to make him pay, other defaults have taken place. If this was sufficient, it is evident, when the debtor is of sufficient ability, the excuse may be urged by each successive officer, and the plaintiff will only reach the fruits of his judgment when he finds one willing, as well as bound to perform his duty. We come, then, to the conclusion, that even if the new sheriff was able, under the process in his hands, to have seized and sold the boat, this circumstance, unless the plaintiffs are connected with it by some wilful default, is not sufficient in mitigation of damages.

3. It is insisted, however, that the evidence shows no breach of duty, by the old sheriff, inasmuch as no demand was made of him for the boat, and as that will be presumed to remain in his custody. The first breach assigned in the declaration is, that the officer has not kept the boat to answer the judgment, and if this was made to appear, there certainly was no necessity to issue either an order of sale or a distringas to him — conceding, for the purpose of this argument that he was entitled to retain the custody of the boat after the devolution of his office upon another. The breach of duty is complete, if he has so disposed of the boat, that the relators cannot have the effect of their judgment. [West v. Tuttle, 11 Wend. 639.]

Judgment reversed and cause remanded.