#### Monroe v. Webb’s Executors.*

Argued Oct. 18th, 1813.

*a.*Action against Court Clerk — Wrongful Endorsements on Execution — Declaration—Allegations.—In an action against the clerk of a court for endorsing credits on an execution, to the injury of the plaintiff, it is not sufficient to charge, in the declaration, that the endorsements were made by the defendant as clerk, or with his privity or consent, whereby the plaintiff sustained a loss: but it should also be stated, that such endorsements were so made, without the order or consent of the plaintiff.

,3. Action on Case — By Executor against Clerk of Court. — Quere. Whether an action upon the case lies in favour of the executor of a person injured by the mal-feasance in office of the clerk of a court.(1)

This was an action upon the case, in behalf of the Executors of Charles Webb, deceased, against Joseph Jones Monroe, clerk of the District Court of Northumberland, for misconduct in office, to the injury of the testator of the plaintiff, in his lifetime. The declaration contained a charge, that a judgment was obtained by the testator in the said District Court, against James Williams, administrator of Le roy *Peachey, and execution issued thereon from the Clerk’s Office, on which execution two •endorsements in writing, were made by the said clerk himself, or by his privity or consent, the one dated April 13th, 1791, giving a credit for 201. 2s. 8d. as received in part •thereof by Charles Webb, and the other crediting the same, January 1790, “by 13 acres of land, at 40s. per acre, 261.;” — “by reason of which said endorsements, credits were allowed to the said administrator, named in the execution aforesaid, to the full amount of the said endorsements ; whereby the plaintiffs wholly lost such part of the said debt, and interest thereon, to be computed from their respective dates till paid, after the rate of five per centum per annum.”

The defendant not appearing', a common, order was entered against him, and writ of enquiry awarded, which was afterwards executed, a verdict found, and judgment entered for 881. 0s. 8d. damages and costs.

To this judgment a writ of supersedeas was awarded by this court; and a judgment having been obtained by the plaintiff, upon a forfeited forthcoming bond, another writ of supersedeas was issued, to stay proceedings on that judgment also.

Hay for the plaintiff in error,

(among other observations) contended, that no cause of action was stated in the declaration. It was not said that the endorsements on the execution were improperly made, or that Peachy’s administrator was not entitled to the credits. It does not appear, therefore, that any misconduct is charged against the clerk.

But if the declaration were sufficient, this action is not sustainable ; being for a tort, and in behalf of the executor of the person who sustained the injury. The general rule is that “actio personalis moritur cum persona.” Lord Mansfield (in Hambly v. Trott, Cowp. 375,) has been ingenious in introducing exceptions to this rule ; but none of them extend to a case like the present.

Williams, contra.

The declaration sufficiently charges a *loss to the plaintiff by the defendants misconduct. At least it is good after verdict; and, by our act of Jeoffails,(a) a verdict upon a writ of enquiry is equally effectual, to cure defects in the proceedings, with a verdict on issue joined. It is enough for the plaintiff to say that his testator obtained a judgment, and that he lost a part of it in consequence of the endorsements made by the clerk. The jury found, by their verdict, that the plaintiff had sustained damages to that amount.

As to the second point, I believe it will be found that the clerk and his executors are made responsible for his official misconduct. No principle in the books warrants the position that, in a case of this sort, the action does not survive.

Hay, in reply.

It is not sufficient to state that the plaintiff lost the money by means of the endorsements : — it should have been stated that they were made improperly and without authority. The latter allegation is not included in the former. The gist of the action is therefore not substantially stated.

Wherever there is any exception to the common law rule, that actions for torts die with the person, such exception is introduced by statute. So an act of assembly was necessary to authorize an action against the executor of a sheriff for an escape, (b) But there is no such act in relation to clerks of courts. I admit that where the action can be brought quasi ex contractu, as in Hambly v. Trott, Cowp. 375, and Williams v. Breedon, 1 Bos. & Pul. 329, the party may recover *38against the executor ; but the case is otherwise where the declaration is in form for a tort.

Wednesday, October 20th, 1813.

*

Supersedeas-Judgment on Forthcoming Bond-Error in First Judgment. — In Laidley v. Bright, 17 W. Va. 779, the sixth headnote reads: If an execution has issued on a iudgment, and a forthcoming bond has been given thereon and forfeited, and another judgment entered awarding an execution thereon, a writ of error and supersedeas should be awarded for error in the first judgment not only to it but also to the judgment awarding execution on the forthcoming hond. President Green, who announced the opinion of the court, said (p. 788), “The defendants in error by their connsel insist, that the writ of error in this case should be dismissed, because it is a writ of error and a supersedeas to two separate judgments rendered in separate and distinct canses. There is nothing in this position. The judgment on a forthcoming bond is not considered as brought up by a super.sedeas to the first j udgment. See Moss v. Moss, 4 H. *&*M. 303, but the two judgments constitute one proceeding, so far as granting a supersedeas is concerned; and if the judgment on the forthcoming bond has been rendered before the supersedeas is issued, and the error exists in the first •judgment, the petition ought to pray a supersedeas to both judgments; and they should he both embraced in the supersedeas. *Monroe v. Webb,*4 *Munf.*73; McCormick v. Bailey, 17 W. Va. 585. So far have the courts gone in holding, that it is •proper for the appellate courts to try the whole matter in one case, that an appellate court may •properly extend the supersedeas first awarded to the judgment subsequently obtained on the forthcoming bond. See Bell v. Bugg, 4 Munf. 260.”

This excerpt is quoted with approval as the rule of Virginia and West Virginia in Vanscoy v. Stinchcomb, 29 W. Va. 263, 11 S. E. Rep. 929. See principal case and Bell v. Bugg, 4 Munf. 260, also cited in Spencer v. Pilcher, 10 Leigh 494.

See further, monographic *note*on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.

(1)

**Note. It seems that such *action*does not lie, but that the remedy for the executor in such case, is by debt upon the official bond. See Rev. Code, 1st vol. ch. 66, sect. 13, p. 75, requiring bonds to be given by the clerks of the District Courts; Ibid. ch. "70, sect. 3, p. 94, as to the clerks of the County and Corporation Courts; Rev. Code, 2d vol. ch. 120, sect. 12, p. 152; Acts of 1808, ch. 6, sect. 4, p. 13; and Acts of 1814. ch. 31, sect. 3, 4, 5, p. 79, concerning the clerks of the Superior Courts of law; Acts of 1811, ch. 15, sect 9, p. 20; and Acts of 1813, ch. 15, sect. 3, p. 45, in relation to the clerks of the Superior Courts of •Chancery. — Note in Original Edition.

(a)

 Revisea Code, 1st vol. p. Ill, ch. 76. sect. 26.

(b)

 Rev. Code, 1st. vol. p. 119, ch. 79, sect. 3.

The president pronounced the court’s opinion, that the judgment was erroneous in this, that no cause of action was charged in the declaration against the defendant; it not being averred that he, as clerk of the said court, made the endorsements on the execution in the proceedings mentioned, without the order or consent of **the testator of the plaintiffs, nor that the endorsements were made by direction of the defendant.

Original judgment reversed, and entered in favour of the plaintiff in error.

The writ of supersedeas to the judgment on the forthcoming bond was dismissed, as being unnecessary.(1)

(1)

 Note. See Bell v. Bugg, post.