#### STATE TO THE USE OF HENRY G. PARISH *vs.*ELLISON G. MANGUM.

In an action against a constable for a breach of his official bond, in not collecting a debt, the relator is entitled to recover at least nominal damages, when he shows neglect and unreasonable delay in the collection, although the plaintiff may have received the amount of his debt from the constable after the commencement of the action.

Appeal from the Superior Court of Law of Orange County, at the Spring Term, 1848, his Honor Judge Peae-son presiding.

Debt on a constable's bond. The breach, assigned in the declaration, was want of diligence in the collection of a judgment. On the 3rd of March, 1842, the plaintiff put into the hands of the defendant, a judgment rendered by a magistrate against Thomas D. Crane. The execution was taken out by the defendant on the 16th of the same month, but he proceeded no farther on it, until the month of June succeeding, when he levied on the land of the defendant in the execution. At the time the execution issued, Crane had personal property abundantly sufficient to dircharge it, which was known to the defendant —Crane died on the 17lh of April, and on the day succeeding, the sheriff levied on his personal property to satisfy other executions, and sold it, and applied the money raised to satisfy them. The constable’s execution, with the other papers, with the levy made by him, was duly returned to the County Court: and after a lengthened litigation and much delay, the land levied on was sold under a *venditioni exponas,*and the plaintiff received the amount of his *debt from the*constable, the defendant, in 1846. At the same time he protested against receiving *211it in satisfaction of his cause of action in this suit, which was then pending in Orange County Court.

The defendant’s counsel moved the Court to charge the jury, that the evidence, if true, did not show a breach oí the defendant's bond, as the plaintiff had got his money. This was refused, and the jury was charged, that, if the *evidence*was true, a breach of the bond, in *not*using proper diligence on the part of the officer, was shown, which gave the plaintiff a good cause of action against him, and that the receipt of the money afterwards could only have the effect of mitigating the damages to a nominal sum.

Yerdict for the plaintiff to that effect, and appeal by the defendant to the Supreme Court.

*Norwood,*for the plaintiff.

*McRae,*for the defendant.

Nash, J.

We concur with the presiding Judge in his charge. The instruction required could not be given. The official bond of the defendant was broken, although the money was received by the plaintiff, subsequently to the bringing of this action in the manner and under the circumstances set forth in the case. The law requires that all process shall be served by the officer, into whose hands it may come, with all convenient speed, and in the manner prescribed. By the act of 1794, Rev. Stat. ch. 62, s. 16, it is directed that the officer, to whom a Justice’s execution is directed, must levy upon the goods and chattels of the defendant, or for want of them on his lands and tenements. The primary fund for the payment of debts, by the law, is the personal property of the defendant. Nor can a constable, without a gross violation of his duty, pass that by and levy on the land ; the latter is not to be touched by him until he can on his oath say, that no goods and chattels of the defendant could be *212found by him. It is his duty to go to the residence of the debtor, and seek for personal property. At the time the defendant took out the execution, Crane had personal property, much more than was sufficient to discharge it and this was within the knowledge of the officer. Why he did not seize it, he does not explain. In consequence of the levy he did make, the plaintiff was thrown into a tedious, prolonged contest in Court, and, instead of the speedy remedy provided for him by the law, was compelled to pursue the one, which the unreasonable conduct of the officer had rendered necessary. After a litigation of near four years, he received his money, which he might have done in ten days after the 17th of April, if the law had been obeyed. For the delay in the collection of the money, the plaintiff was not entitled to any damages ; the interest which accrued is considered sufficient for them, but for his additional expenses in prosecuting his suit in Court, over and above those which were taxed against the defendant, he would be entitled to compensation. He, however, has proved nothing paid by him, and, therefore, is entitled to nothing for them. The reception of the money by the plaintiff did not defeat his action, for it was received under an express exception by the plaintiff, that it should not have such effect, and a tacit assent thereto by the defendant. But the plaintiff is entitled to the damages the law implies in every breach of official duty, which in this case is but nominal.

Ruffin, C. J.

When this suit was brought, the contest was no doubt a real one, whether the defendant was liable for the relator’s debt; as he would unquestionably have been, if the money had not been made from the land. It is not material to consider, whether that recovery could be given in evidence under the plea of conditions performed, inasmuch as the relator admitted satis*213faction *pro tanto*of the damages arising from the breach suggested in the declaration, and only claimed a verdict for enough to carry the costs. Whether he had sustained an} damages, which remained unsatisfied, was the point. That he had, in legal contemplation, seems clear. For, although the money was ultimately raised, it was effected at an expense of money or labor, which would not have been incurred, if the defendant had pursued the direct and legal method of taking the goods. Ordinarily, indeed, the creditor has no concern, whether a sheriff levy on goods or land ; for, it is not material to him, so that he gets his money at the return of the writ, and he, in fact, gets it without either more or less cost in any way, whether the sheriff take the one or the other kind of property. But it is not so with respect to executions issued by a Justice of the Peace ; for the creditor is necessarilj' injured to some extent if the constable fail to levy on the goods, when he can, and, instead of doing so, levy on land. It is so, because a constable can sell goods and obtain satisfaction without any further agency, direct or indirect, of the creditor, further than finally to secure his money; whereas, by levying on the land, he compels the creditor to be at the expense of employing an attorney to get the judgment affirmed or an order of sale and sue out execution, or, at least, puts the creditor to the trouble of attending in person to perform those acts for himself, [t seems plain, that in this way the creditor has an interest — one, that is pecuniary — that a constable should levy on the personalty, when accessible to him, and not on the land ; as by the former, the creditor gets his debt without the loss of either time or money, while by the latter, a loss of one or the other is unavoidable. Therefore the relator'must have sustained, at the least, the nominal damages assessed: and on that ground, I agree with my brother Nash, that the judgment should be affirmed.

Per Curiam. Judgment affirmed.