Forsyth v. Dickson , 1853 Pa. LEXIS 253 ( 1853 )

The opinion of the court was delivered

by LOWRIE, J.

— This is an action against the sheriff for a false return of nulla bona to a fi. fa.; and as the question of property was rightly decided, the charge is sustained. But the sheriff gave evidence tending to show that a levy would, have been fruitless tolhe plaintiff below, because there were prior executions in his hands that, after allowing for all payments, would have taken the whole proceeds. The substance of the subsequent ruling of the court was to exclude this evidence from the consideration of the jury, and thus the plaintiff had a verdict for the whole amount of his execution. This is error. For this breach of duty the sheriff ought to suffer; but it is not right that the measure of justice should depend upon the chance of the amount of the execution, whether it be two or ten thousand dollars. lie who is wronged by the act can claim no more than that the wrong be repaired. He has no claim for anything more than compensation, and for this principle the authorities are abundant: 9 Greenleaf, 28; 1 Fairfield, 20; 6 Mass. 242; Sedgwick on Dam. 528. And so we lately decided in the case of The Commonwealth v. Contner, 6 Harr. 439. Prima facie he is liable to- the whole amount of the execution, and he must show very clearly the facts that reduce his liability and measure that reduction: 9 Johns. 305; 1 Hill, 275, 276, 550. But the neglect of duty by the sheriff is plain, and all the cases show, that in an action not against himself and his sureties on the recognizance, but against himself alone, he is liable for at least nominal damages; and we might so have entered the judgment here, if it had been admitted that, on these principles, po more could be recovered. Bjit it is not, and we treat the ease as an improper rejection of evidence. We wish that, when points- are reserved, they should be so clearly stated that we can know what they are, and what judgment is to be rendered in their solution.

Judgment reversed, and a new trial awarded.