
    
      Gibson v. The Governor, at the Relation of Stewart’s Adm’r.
    February, 1841,
    Richmond.
    Sheriff’s Bond — Action on for False Return — Measure of Damages. — in debt upon a-sheriff’s official bond to recover damages sustained by the relator by reason of a false return of nulla bona.oh a fl. fa. sued out by the relator, the -measure of recovery is the amount which was due on the execution at ' the return day: -which ought to be found in damages, and no continuing interest ought to be allowed on such damages.
    Same — Same—Same—Verdict and Judgment for More Than Declaration Claims — Jeofails. —And where the relator in his declaration shews and claims the precise amount he is entitled to recover by reason of the wrong complained of,,a verdict and judgment for more than the claim in the declaration warrants, are erroneous; and the error is not cured by the verdict, under the statute of jeofails.
    Same — Same—Same—Same—Release—Effect.—But the court reversing the judgment for such error, will not direct a new trial, if the relator will release the excess of damages recovered beyond the just amount, but upon such.release of the excess, will direct judgment to be entered for the just amount of damages.
    Debt, in the circuit superior court of Eauquier, brought in the. name of governor Eloyd, successor &c. at the relation of Stewart’s administrator, against Gibson late sheriff of Eauquier, upon his official bond. The action was founded on the statute, 1 Rev. Code, ch. 78," § 12, 13, p. 278-9.
    The declaration demanded 30000 dollars, the penalty of the bond; and then setting oiit and making proferí of the bond, and reciting the condition in hasc verba (which was in the form prescribed by the statute, and provided, among other things', that the sheriff should well and truly execute and due return make of all process and precepts to him directed, and in all other things truly and faithfully execute and perform his said office, during his continuance therein) assigned the following breach— That Stewart’s administrator, having recovered judgment in the county court of Fauquier, at the June term thereof 1821, against one Chilton, for 400 dollars with interest from the 7th November 1812 till paid, and 13 dollars 86 cents costs, subject to a credit for 163 dollars 79 cents paid on the 1st January 1816, sued out a writ of fieri facias thereon for the debt, interest and costs, returnable to the fourth monday in August 1821, which was delivered to one of the sheriff’s deputies to execute and return according to law, who made return upon it “no property found;” and that the return was false. The defendant pleaded, conditions performed; upon which an issue was made up. . The jury found a verdict for the relator, and assessed his damages by reason of the breach alleged, to 349 dollars 80 cents, with interest on 335 dollars 54 cents part thereof .from the 1st January 1816 till paid. Judgment for the penalty of the bond,- to be discharged by the damages assessed by .the verdict and the costs of this suit, and such other damages as should be afterwards assessed upon scire facias sued out, and new breaches of the condition assigned, by,any other party injured.
    Upon the application of the defendant, this court allowed him a supersedeas to the judgment.
    Morson, for plaintiff in, error.
    The action was, substantially, an action for a tort; an action to recover damages for an official malfeasance of the sheriff; for a false return made by his deputy upon a fieri facias sued out by the relator. The statute gives this action -of debt on the sheriff’s bond, in order to secure redress to the -relator for the officer’s default, but it does not convert the relator’s claim to damages for the tort, which is its real nature, into a claim for breach of contract: the measure of damages should be the same as in an action on the case brought for the tort. The rule is stated by lord Mansfield in Robinson v. Bland, 2 Burr. 1087, that in trespass or tort, the damages should be estimated only up to the time of the wrong complained of ; and this court approved the rule in Brugh v. Shanks, 5 Leigh 598. Here, the verdict and the judgment first give the' relator excessive damages for the tort, and then give him interest thereon, retrospective and prospective; but it is the continuing interest that constitutes the sheriff’s chief grievance. The declaration shews the data by which the amount of damages may be exactly ascertained ; and, by the relator’s own shewing, the utmost he could have had a right to recover, was 326 dollars 7 cents, with interest on 312 dollars 21 cents, part thereof, from the 1st January 1816 to the fourth monday in August 1821; that beifag the utmost of his loss by reason of the sheriff’s default, at the time it was committed, since that was the utmost amount of his execution on which the false return was made. I say this was the utmost extent of his claim to damages_ against the sheriff; for the recovery against the sheriff does not vest the property in the execution in him; the relator may still pursue the original debtor, and so, perhaps, recover double satisfaction. It would be most- unreasonable to give him running interest during the whole time of his long delay to bring his action; a delay which may , have jeoparded, perhaps rendered. wholly unavailing, the defendant’s remedy over for indemnity. Besides, neither the sheriff nor his deputy enjoyed the use of the money; the relator’s claim supposes that it was not in fact collected, though .with proper official diligence it might have been. Supposing the debt wholly lost to the relator, the sheriff is no more bound to pay him running interest upon it in damages, than an executor, who-.by negligence has lost a debt due to his testator’s estate, which by due diligence he might have recovered, is chargeable with interest on the debt he has so lost. Now, an executor in such case, is only chargeable with the principal lost; as was held by this court in Colstpn v. Webb, (which has not been reported). So, an attorney by whose neglect debts placed in his hands for collection are lost, is only chargeable with the principal; Rootes v. Stone, 2 Leigh 650. Interest on unliquidated damages for a tort never can be proper.
    G. N. and C. Johnson, for defendant in error.
    A sheriff covenants by his official bond to execute and make due return of all process to him directed, and when he makes a false return he breaks that covenant, and is responsible in damages for a breach of contract: the Statute gives the party injured an action for the breach of contract. He ought to make compensation for the whole loss sustained by the party injured thereby. The loss to the. relator, in this instance, was the loss of the money due upon his execution, and of the use of that money for years, in other words, of the interest of the money. And the statute expressly provides, that “in all actions founded on contracts, and tried before a jury, the jury shall ascertain the principal sum due, and fix the period from which intefest shall commence, if interest be allowed by them; and judgment shall be given accordingly, carrying on the interest till' the judgment be satisfied;” 1 Rev. Code, ch. 128, l 80, p. 508. No bill of exceptions having been filed to shew the state of facts proved at the trial, the judgment should be ^'sustained, if in any possible state of facts the verdict might have been right; as if it appeared that the sheriff had in fact received the whole amount due on the relator’s execution at the very time he made the false return of nulla bona, then surely he ought to have been charged with interest till he should make payment. If it be said, that the declaration does not allege that the sheriff collected the money, j’et, by the statute of jeofails, the verdict cures the omission of such averment; it cures the omission of the averment of matter without proving which the jury ought not to have given such verdict. Id. § 103, p. 511, 512. At any rate, the verdict and judgment, if the court shall think them excessive, may be corrected, by requiring the relator to release the excess and the continuing interest, or giving judgment for the just amount, including the interest, as was done in Brugh v. Shanks.
    Morson, in reply.
    The statute which authorizes juries to give continuing interest, applies only to actions founded on contracts, where a principal sum is due, and cannot be tortured into a warrant for giving interest on unliquidated damages for an official malfeasance of a sheriff, or for any other tort. As to the statute of jeo-fails ; this is an action not for vindictive damages, but for compensation for the loss sustained by reason of the sheriff’s default complained of; and a greater recovery than the wrong complained of in the declaration warrants, is just as erroneous, as the recovery, in an action for a liquidated demand, of more than the plaintiff claims in his declaration; and in both cases the error is equally apparent on the record. The case of Brugh v. Shanks is a clear authority to this point.
    
      
      See monographic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.
    
    
      
      To shew this, the counsel submitted the following statement, which the court afterwards adopted:
      "'Original debt due Nov. 7, 1812..$400. 00
      “Interest to Jan. t, 18Í6, say 3 years 2 months. 76. 00
      ’ 476. 00
      “ Credit paymeht made Jan. 1, 1816.1. 163. 79
      “ Balance due that day... '312.21
      “ Add the costs. 13. 86
      $326- 07
      “Add interest on $312. 21 from Jan. 1, 1816 to the 4th monday in August 1821, the return day of the execution ; this shews the utmost amount of. the execution, and therefore,the utmost amount of damages which the creditor sustained by the false return. ’' —Note in Original Edition.
    
   PER CURIAM.

The amount which the relator was entitled to recover, according to the claim alleged in his declaration, was the amount due upon his execution at the return day thereof; and the jury should have found *that amount for him in damages, and no interest on such damages should have been allowed'by the verdict, or given by the judgment of the court. Therefore, the judgment must be reversed with costs. But the error may be corrected without a new trial, if the relator will release the excess he has recovered beyond what he was entitled to; and the court will give him an opportunity to make the proper correction. Therefore, the court will remand the cause to the circuit superior court for a new trial to be had therein, unless the relator shall release the damages found for him by the verdict, except as to the sum of 326 dollars 7 cents with interest on 312 dollars 21 cents part thereof from the 1st January 1816 till the 4th monday in August 1821, in which case judgment shall be entered for him accordingly with costs.

Judgment reversed, and cause remanded with the directions indicated in the .opinion.  