
    MAXWELL v. PIKE.
    Where a town clerk inadvertently gave a defendant a false certificate, attested as a copy of record, in order to support his plea of infancy ; by reason of which the plaintiff was obliged to obtain a continuance of his cause to the next term, prior to which the debtor died ; — it was holden that the town clerk was liable to pay the plaintiff the damages occasioned by thé delay and continuance of the action.
    Proof of the issuing of a commission of insolvency is the only competent evidence of the insolvency of a deceased defendant, so as to dissolve an attachment of his estate.
    This was an action of trespass on the case, in which the plaintiff declared that on the 30th day of June 1818, one Humphrey Scammon was indebted to him for goods sold; — that the debt being unpaid, he sued out a writ of attachment October 26, 1818, and caused sufficient personal estate to be attached to satisfy his demand ; — that at April term 1819, the cause came on to be tried in the Circuit Court of Common Pleas, and the plaintiff proved the sale and delivery of the goods to Scammon, and his promise to pay; — that it became important to shew the time of the birth of Scammon; — and that the defendant being town cleric of the town of Saco, falsely and fraudulently gave tó said ScaWimon a false c'ertificaté under his hand official, stating that said Scammon was born October 30, 1797, and purporting to be a true copy of the records of the town of Saco; whereas in truth said Scammon was born October 20,1797, and so was the town record, then in custody of the defendant; — that Scammori’s counsél offered said false certificate in evidence to the jury, whereupon the plaintiff was obliged to move for and did obtain a continuance of his action to the next term of said Court in September following; — but that in the vacation, viz. August 25, 1819, Scammon died totally insolvent, whereby the plaintiff’s attachment was dissolved and his debt lost.
    At the trial of this action, upon the general issue, the plaintiff proved his debt against Scammon, and his suit, attachment, trial upon the-plea of infancy pleaded by Scammon, the production of the false certificate to support that plea, its falsehood, and its materiality to the issue, the true record being such as would have proved him of full age at the period in question;— and he further proved the continuance of the action from April to September term 5 that in the interim the debtor went on a voyage to the West Indies, where he died sometime in August;— and that the action was still pending in the same Court, for the purpose of summoning in an administrator to defend it, but that no administration had yet been granted upon his estate.
    It further appeared that Scammon applied to the defendant for the certificate, while he was engaged in his ordinary employment at his shop; which not being willing to leave to go to his house and examine the record, he certified hastily, according as Scammon affirmed the truth to be.
    The plaintiff then offered parol testimony that Scammon, when he died, was poor and left no property ; which was objected to as incompetent, but was admitted by the Judge for the purposes of this trial, subject to the opinion of the whole Court; and a verdict was thereupon returned, by consent of parties, for the plaintiff, for the entire amount ©f his debt and costs against Scammon, and to be amended or set aside by the whole Court, according to their opinion upon the facts reported as above by the Judge who presided at the trial.
    
      Shepley, for the defendant.
    1. Parol testimony was incompetent to prove the fact of Scammon's insolvency, the law having plain reference to evidence of an higher nature. The attachment of his goods is not dissolved but upon his death, administration granted on his estate, a representation made to the Judge of Probate that the estate was insolvent, and a commission of insolvency duly issued. This last is an indispensable requisite, and is matter of which the record is the only evidence.
    
    2. No commission of insolvency having issued, the plaintiff’s attachment is yet in full force on the goods of the debtor, and the debt is abundantly secure. Of course the plaintiff has sustained no damage. The gravamen is the death of Scammon, not the misconduct of the defendant. It is as if the legislature, pending the action, had passed a law dissolving all attachments, and directing a distribution pro rata among creditors. There the plaintiff would have lost his debt by the operation of a public law; — here, by the act of God.
    3. But if the loss were the result of any act of the defendant in combination with other causes, yet it is a result too remote to bind him. lie is answerable only for the natural and necessary, the probable and direct consequences of his act, which the death of Scammon surely was not. Thurston v. Hancock,. 12 Mass. 229.
    
      Emery, for the plaintiff.
    [He was about to argue upon the general questions presented in the case, but was directed by the Court to confine his remarks to the question of damages alone.]
    If the plaintiff shews that he is exposed to damage in consequence of the defendant’s misconduct, the defendant must be -answerable for its amount, unless he can shew that the danger or liability has since been removed. Sheriffs of Norwich v. Bradshaw, Cro. El. 53. Birdv. Randall, 3 Burr. 1345.
    And it is sufficient if the loss proceed from the act of the defendant. His penitence, his explanation, and his upright intent, cannot avail him, unless they can be beneficial to the party injured, which in this case they cannot. He gave Scammon a false certificate, which enabled him to do mischief; when his duty as town clerk required him to certify the truth at his peril. — 3 East. 599. Ogle v. Barnes, 8 D. fy E. 188. Stat. 1795, ch. 41, sec. 1. Lincoln v. Hapgood, 11 Mass. 350.
    The case of Thurston v. Hancock, shews that full damages are recoverable whenever the plaintiff is not equally in fault, as was the case there. Thurston did not recover full damages, because he placed his house too near the verge of his land, ,thus exposing it by his own act to the subsequent danger from excavation.
    The cause being continued nisi, the opinion of the Court was delivered as follows, at the succeeding term in Cumberland.
    
   Mellen C. J.

It is admitted that the certificate which the defendant signed as town clerk was false; though it appears he was not aware of it at the time ; and that a fraud was practised upon him by Scammon. Still, as a certifying officer,he must be answerable to the party injured by such false certificate ; whether he signed it fraudulently, or through negligence in not examining the x*ecords and ascertaining the fact which he ought to certify. — The plaintiff is therefore entitled to maintain the present action ; and the only question is, what is the measure of damages.

The plaintiff contends that as he secured by attachment on the mesne process against Scammon, property sufficient to satisfy the demand against him; and as Scammon died several years since, and, according to the parol evidence in the case, insolvent, he is entitled in this action to judgment against the defendant for the amount- of the full demand, which, it is alleged, is now lost to him. As no administration has ever been granted on Scammon1 s estate, we have no legal means of knowing whether his estate is insolvent. — Such insolvency cannot be proved by parol; — nor can any thing short of a commission of insolvency be competent proof of the dissolution of an attachment on the mesne process against the deceased, according to the provision of the 32d Sect, of the act of 1821, ch. 60, and-to the case of Rockwood v. Allen, Exr. 7 Mass. 254.

This principle being applied to the present case, it stands on the same ground as it would if Scammon were now living; and how could it then be contended that the plaintiff has lost the benefit of his attachment and the amount of his demand ? — lithe cause had been finally decided at the April term, and in consequence of the defendant’s false certificate judgment had been rendered in favour of Scammon, the plaintiff in this action would be entitled to full damages — noihing less would amount to an indemnity. — But the only damage appearing is this, that in consequence of the false certificate produced at the trial in April 1818, the cause was continued to September term following, to obtain proof of its falsity. — This was a delay and a damage to the plaintiff; for which he is entitled to the damages incident to such delay. — If Scammon had not died before September term the cause would probably have been finally disposed of-at that term. — But it has ever since been continued for want of an administrator on the estate to answer to the suit and defend it. — The defendant is not answerable for the death of Scammon: nor for the delay occasioned by that or any other cause, since existing. — On these principles the verdict is incorrect and must be altered so as to stand for the damages occasioned by the delay and. one continuance of the action. — These damages are composed of counsel fees paid at the April term by the plaintiff; the. travel and attendance of himself and his witnesses at that term, and the expense of obtaining them. — As soon as the counsel have ascertained the amount of these sums, let the verdict be reduced to that amount and judgment be entered thereon.  