
    *Crump v. Ficklin, “for Guthrie.”
    January Term, 1855,
    Richmond.
    Absent Thompson, J. (He sat in the court below.)
    j. Damages — Measure of —Action on Indemnifying Bond. — The proper measure of damages in an action on a bond, to indemnify a sheriff for the sale of property, seized under execution, is the actual value of the property seized and sold, with interest in the way of damages, on the amount of the value, from the day fixed on by the jury, as the time at which the property is to be valued, until the time of the trial.
    2. Same — Same—Value of Property. — The relator has a right to recover in damages the value of the property, either at the date of the seizure, or that of the sale, or at any intermediate time between the two, with interest as aforesaid.
    3, Same -Same — Nominal Damages. — For the mere seizure of the property (where a sale ensues), the damages ought to be nominal only.
    In 1846, Hugh Caperton and Richard M. Crump, merchants and partners under the name of Caperton & Crump, brought suit in the Circuit Court of Albemarle, against Peter C. Hogg, Abraham Whitmore and J. J. Paris, merchants and partners, under the name of Hogg, Whitmore & Co. The writ was served only on Paris, and against him judgment was obtained for the sum of $12,185 11. On this judgment the plaintiffs issued a fi. fa. against Paris, which was levied on certain goods, wares and merchandise in possession of Hogg, Whitmore & Co., including 951 barrels of flour. The sale of the property was forbidden by Hogg and Whitmore, and by Matthew Blair and John B. Hart, trustees in a deed given by Hogg, Whitmore & Co., for the benefit of their creditors; and thereupon the sheriff (Benjamin Picklin), required an indemnifying bond from the plaintiffs. The bond was executed by Crump, with Hugh W. Pry and Joshua J. Pry as his securities, and then the sheriff sold the property for the net sum of *$5,693 99. Of this sum he paid to Caperton & Crump $3,269 94, (the net amount of the sales of flour,) and retained the balance in his hands under an injunction in favor of Hart & Blair, forbidding him to pay it over.
    Of the flour sold, 182 barrels were subsequently claimed by one Hugh G. Guthrie, and in August, 1846, the sheriff brought suit, at the relation of Guthrie, against Crump and his securities in the indemnifying bond, to recover $2,000 damages accruing to him on account of the unlawful sale of his flour.
    At the trial of the case the court instructed the jury that “if they should be of opinion to find for the plaintiff upon the issue joined, they must find damages commensurate with the injury, that the injury complained of in this case was the unlawful seizure and sale of the plaintiff’s property under process of execution against another person; that the minimum of damages to which the plaintiff was entitled was the fair and reasonable value of his property at the date oí sale, and interest in the shape of damages thereon up to the date of their finding; but that they were not limited to the actual value of the property and interest; that in addition to the actual value and interest in the form of damages in such cases, the plaintiff had a right to claim redress for the injury or invasion of his right of property by the unlawful seizure and sale; and that the extent of such redress, to be superadded to the actual value and interest, should depend upon the circumstances, under which the levy, seizure and sale were made. These damages, sometimes called vindictive, were to be augmented or diminished according to the aggravating or mitigating circumstances of the case. Aggravated on the one hand, if the defendants caused the seizure and sale with full knowledge of the plaintiff’s right of property, or without probable cause to believe it was the property of the debtor in the execution, and mitigated on the other, if they had such probable cause; and damages thus assessed, though sometimes '^called vindictive, are in fact compensatory or remuneratory of inconvenience, trouble and expense, for which a party who has had his property unlawfully taken from him is not indemnified by the actual value, with interest and the legal costs. The court further instructed the jury that the price for which the property sold at the sheriff’s sale was not the proper criterion of value unless they were satisfied from the evidence (there being evidence on both sides as to value) that the price for which it sold was its fair and reasonable value.”
    The defendants objected to this instruction, and filed a bill of exceptions thereto, and the jury thereupon found a verdict for the plaintiff, and assessed his damages at $1,203 50; and judgment was rendered against the defendants, for the- amount of the penalty of the bond, to be discharged by the pa3rment of the damages assessed by the jury, and the costs, and such other damages as might thereafter be assessed, upon a writ or writs of scire facias being sued out, and new breaches assigned by said Hugh G. Guthrie or any other person or persons injured.
    From this judgment Crump appealed to this court.
    Lyons and Patton, for the appellant.
    Stanard and Bouldin, for the appellees.
    
      No notes of the argument have been preserved, but the objections to the recovery on the part of the appellant, appear from the petition of appeal to be as follows:
    1st. Vindictive damages can never be recovered.in a suit on an indemnifying bond — they are only tolerated in aggravated cases of personal injury, as trespass, battery, seduction and the like. When the owner of property, levied on as that of another, has obtained its value, he has received all he is entitled to, unless there be some special damage resulting from the act of seizure, and if any such special damage occurs it must be laid specially, to enable him to recover. 1 Chitty’s *Pleading, 396, 397, 398, Any other view of the rights of the parties would be utterly subversive of the indemnifying law, for no creditor could avail .himself of it, as no man would give security for vindictive damages. Vide Woodhamv. Gelston, 1 Johns. Rep. 134; Hallett v. No-vion, 14 Johns. Rep. 273; Baker et ais. v. Freeman, 9 Wend. 36. It is hardly possible to conceive that the plaintiff in an action on an indemnifying bond, is entitled to recover more than he could recover, if he were the plaintiff in an action of trover for the same property, and yet the law is settled that in the latter case he could recover only the value of the property with interest and costs. Mercer v. Jones, 3 Camp. 477; Kenned3r v. Strong, 14 Johns. Rep. 128. And so far is the law from allowing more in such a case, it will on the other hand allow the defendants the cost of sale by the sheriff, when the article seized and sold is one of commerce, or which, from its situation, would have been sold in any event. Clark et al. v. Nicholson, 25 B. C. B. 612.
    2d. The instruction violates the condition of the bond, which is, to pay the damages which the owner “may sustain in consequence of such seizure and sale.” The party can recover then only such damages as he has actually sustained, and of course not vindictive damages. This view is further strengthened by the act of Assembly, which gives to the purchaser of property at a sheriff’s sale, if he be ousted, the same remedy upon the bond, which it gives to the owner of the property. Now surely the purchaser could not claim vindictive damages. Vide also Sup. Rev. Code, 1819, p. 272, 273, ? 3.
    3d. But if vindictive damages could be recovered in such a suit, it could only be recovered of the guilty party — surely not against innocent sureties, as in this case it has been. It could not have been the intention of the Legislature to make sureties responsible for imaginary or moral wrong in vindictive damages.
    
      
      See monographic note on “Damages” appended to Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. 455.
    
   *TYBBR, J.,

delivered the opinion of the court, in which all the judges concurred.

The court is of opinion, that there is error in the instruction given by the court below to the jury, as to the proper measure of damages, if they should be of opinion, to find for the plaintiff in the court below on the issue joined; and the court is further of opinion, that the proper measure of damages in an action on an indemnifying bond at the relation of the claimant of the property, in the event of his establishing title thereto, is the actual value of the property seized and sold, with interest in the way of damages, on the amount of the value, from the period at which the value is ascertained, to the time of the trial; and that in ascertaining such value, the relator has a right to recover in damages, the value of the property, either at the date of the seizure, or at the date of the sale, or at any intermediate time between the seizure and sale, with interest as aforesaid; and that for the mere seizure of the property, (where a sale ensues,) the damages are nominal only; therefore it is considered by the court, that the judgment be reversed and annulled with costs; and it is ordered that the verdict of the jury be set aside, and a venire facias de novo awarded to try the issue joined between the parties, which is ordered to be certified to the Circuit Court for the county of Albemarle.  