Barby, use, &c. v. Harris. At the trial upon these issues, a bill of exceptions was sealed, at the instance of the plaintiff, which discloses that the plaintiff gave in evidence the transcript of the record of the suit at the instance of Austin & Tardy against the steamboat Ponchartrain, which resulted in a judgment of condemnation to pay $2,747, besides costs. The writ of seizure in the case, is returned by Johnson, as sheriff, that he had taken the boat, and had her in custody. The order of sale was placed in the hands of the sheriff of the same county, one Womack, who returned that the said boat was not within his county. It was also proved, that at the time of the seizure, Johnson was sheriff of Sumter county, and of his own volition took the bond from Burton and Whitsett, set out in the pleadings, which he returned, assigned by himself, pendthe libel suit, to Austin & Tardy, into the clerk's office, where it was placed among the papers of that suit. The assignment of the bond was drawn by the attorney of Austin & Tardy, but without their knowledge or authority. It was also proved, that Johnson went out of office on the first Monday of August, 1837, and that one Womack became and was his successor for the ensuing three years. The order of sale came to his hands, and was returned as before stated. Womack entered upon the bond taken by Johnson, that it was forfeited, as the obligors had "wholly failed to deliver and restore the steamboat within the county of Sumter." There was also evidence conducing to show, that the boat, in April, 1838, was sold in Mobile, under admiralty proceedings in that court; and that it was purchased at said sale by one Stone, who then run it; but it was, during the time the order of sale was in Womack's hands, and before and after, frequently at Gainesville, in Sumter county, and could have been seized by him. There was also evidence conducing to show, the boat was worth more than the amount of Austin Tardy's judgment. The court charged the jury, that the bond taken, and the placing of the boat in the possession of the obligors, was not a performance (by the sheriff) of his duty; and that he and his sureties were liable for any injury Austin & Tardy might have sustained by means thereof. That if Womack committed a default in not taking the boat, the default of John Bagby, use &c. v. Harris. son was distinct from that, and Austin & Tardy could not, by Johnson and his sureties, be turned over to seek redress against Womack, for any default on the part of Johnson; but if Womack could have taken and sold the boat, under the process received by him, the plaintiffs would be entitled to recover slight damages, if any. The plaintiffs excepted to this charge, and now assign it as error. R. H. SMITH, for the plaintiff in error, argued 1. That the supposed liability of Womack was not a matter either in bar or in mitigation of damages. [Webb v. Bumpass, 9 Porter, 201; Strange v. Kenan, 8 Ala. Rep. 816; West v. Tuttle, 11 Wend. 637; Whitehead v. Varnum, 14 Pick. 523; Clapp v. Cowan, 7 Mass. 98.] 2. In admiralty proceedings, the officer has no authority to bail without an order of court. [Dunlap, Adm'r, P. Ch. 7.] Here the bond is not within the scope of the statutes. [Richardson v. Cleveland, 5 Porter, 257; S. P. 2 Ala Rep. 742.] And thereupon the sheriff is liable as for an escape. [Watson on Sheriffs, 23, 117, 86; 20 John. 64.] 3. It was the duty of the old sheriff to hand over the boat to his successor. [19 Viner, 451, $4 ; 18 Wend. 500; 21 Wend. 236; 20 John. 64.] And as he surrendered the possession to another, he is liable to the action. [4 East, 504; 15 Ib. 78.] H. I. THORNTON and WM. G. JONES, for the defendant, argued 1. That the boat itself was liable to be seized, as the lien was not destroyed by taking the bond, and if it was in the power of Womack to seize it, the actual damage resulted from his omission to do so. The addition to the charge of the words "if any," was probably induced by the circumstance, that two distinct issues were submitted, and the charge applied to the mitigation of damages upon the one, in the event they found the other against the defendant. 2. But under the facts of this case, the defendaat was entitled to a verdict, and therefore the court will not reverse. The sheriff cannot be expected to retain actual possession, by himself, of property levied on, but may place it in the hands of a bailee. Bagby, use &c. v. Harris. He has no right to deliver it to his successor, or rather cannot relieve himself from liabily by doing so. Watson on Sheriffs, 15; 7 Mass. 505; 2 N. H. 184; Bondurant v. Buford, 1 Ala. Rep. N. S. 359.] He by law is required to have the boat forthcoming in the event a judgment is obtained and a demand made. If otherwise, it would be his duty to watch the progress of the suit, in order to ascertain the precise moment of obtaining judgment. When then, the court charged, the plaintiff was entitled to slight damages, if any, it was an error, if at all, against the defendant, for he was clearly entitled to no damages whatever. GOLDTHWAITE, J.-1. The only mode 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 [Glozer v. Rood, 2 Metc. 490.] And a neglect by an sum. Bagby, use, &c. v. Harris. 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 bound 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 Davenport v. Bartlett & Waring. 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. DAVENPORT v. BARTLETT & WARING. 1. A vendee of land, with warranty of title, may purchase in an oustanding paramount title, or incumbrance, and may recover upon his warranty without an actual eviction; but in such a case, he acts at his peril, and assumes the burden of proving, that he submitted to a good title, paramount to that of the warrantor. 2. D, in a suit in Chancery, instituted by him against C and others, obtained a decree for the possession of certain lands, which C had previously sold with warranty, and which were purchased with warranty by B & W ; the same decree requiring D to pay C a sum of money, and giving to C a lien on the land for its payment. C being liable to B & W on his warranty, and being insolvent, and a non-resident: Held, that a Court of Chancery would give relief, and direct the money due from D to C, to be paid to B & W, they having to quiet their title, purchased from D his interest in the decree. 3. When a decree pro confesso has been taken for want of an answer, and a full and complete answer is afterwards filed-Quere? does not this of itself, under the statute, set aside the decree, pro confesso, and purge the contempt, without any order of the court to that effect. But an answer filed under such circumstances, comes too late at the trial term, and after the master has reported, unless by consent of parties. 4. A decree in Chancery is conclusive as between parties, and privies to the bill as to all matters which were put in issue, and cannot be collateral 9 179 125 537 |