#### STATE TO THE USE OF J. S. WOOD & CO. *vs.*JOHN W. SKINNER & AL.

June 1843

In an action against a constable for not collecting notes placed in his hands collection, where it appears that the constable, before suit brought, had -tendered back the notes to the plaintiff, and the debtors were still good, the plaintiff is not entitled, by reason of the mere negligence of the constable in not collecting, to recover the whole amount of the debts, but, unless he .shews some actual injury sustained thereby, he is entitled only to nominal damages.

In actions for breach of contract, where there is no statutory provision or express agreement of the parties on the subject, the person injured should be ■reimbursed in damages what he has lost — and, if no loss be shewn by proof, should be reimbursed to the extent of the loss which the law presumes.

The case of *Governor*v *Matloch,*1 Hawks 425, cited and approved.

Appeal from the Superior Court of Law of Perquimons County, at Spring Term, 1843, his Honor Judge Pearson presiding.

This was an action of debt upon the bond of the defendant, Skinner, and the others, his sureties as constable. The bond was :in the usual form, and dated 10th of February, 1840. The breaches assigned were, 1st failing to pay over money collected ; 2dly. failing to collect. Pleas, conditions performed, conditions not broken.

On the trial, the plaintiff produced two receipts of the defendant Skinner, as constable. The first set forth a number of small notes and by whom signed, payable to the relators ; The second, a number of book accounts due the relators for goods sold. The plaintiff then proved that on the 20ih of January, 1842, the relators demanded of Skinner the money for all these notes and accounts. Skinner said he had no money, but he had the papers, most of them were with him, and *565the others he could soon get from his house. Wood, one of the relators, replied, that he did not want the papers — he wanted the money — that he had had ample time to collect, and he should hold him accountable for the money. The writ issued the 24th of January, 1842. The court here remarked to the plaintiff’s counsel, that, as to the *o?ms pro-landi,*the court was of opinion, that to charge the agent, the relators were to shew that the debtor had effects ; but, if it was shewn that the officer had taken judgment and sued out execution, and made no return, his failing to discharge himself by the return of *nulla bona*raised a presumption against him, and it was then for the officer to shew that the debt could not have been made. Then as to the measure of damages. The court was aware that it was a practice almost universal, when the claim was good during the official year, in which it was received by the constable, although it continued good at the end of the year, was good when the writ issued and when the suit was tried, still to make the amount of the claim the measure of damages; and after-wards the constable or his sureties were allowed, by favor of the relator, to collect the debt ior his or their own use by way of re-imbursement. To this practice there were several objections. The constable, being a collecting agent, .had a right, in mitigation of damages, to shew that he had tendered back the papers, and .that the relators of the plaintiff might still collect their debts and interest. It was no reply to say, that.the relators, having received the amount of their debts by way of damages, usually permitted the constable or his sureties to collect the debts for themselves, in case the legal title did not pass. The relators might refuse to let their names be used, or might get the notes or judgments and collect them for their own use, and so be twice paid. — . The court was clear in the opinion, that, when the agent, before suit brought, tendered back the papers, and had them ready at the trial to be handed over, and the debtors were .still good, the measure of damages was not the amount of the debt, but would be nominal. It might also be contended, with what force the .court was not prepared .to say, that *566when the agent tendered back the papers and they were refused by the principal, although then good, and suit was brought on the bond of the agent, and the debtors became insolvent pending the suit, the loss should fall on the rélators, provided the agency be determined. And it might be said, in behalf of the sureties of 1840, that if the debts were good at the end of the year and the relators’ damages in their suit nominal, the subsequent insolvency of the debtors should not throw loss on them. The plaintiff’s counsel stated, that many of the debtors, though good at the end of the year, for which the bond was given, had become insolvent before the writ issued — many good when the writ issued were now insolvent, and many were still good ; but the relators were unwilling to take back such as were now good, and take nominal damages for the failue to collect them, unless they had no better remedy. The plaintiff’s counsel, in submission to the intimation of the court, suffered a judgment of nonsuit to, be entered, and appealed to the Supreme Court.

No counsel in this court for the plaintiff.

*A. Moore*for the defendants.

Gaston, J.

We are not called upon by this appeal to examine the several matters, which were discussed on the trial of this cause, but only the opinion of the court, in deference to which the plaintiff submitted to a nonsuit. That opinion was, '* that where the agent,” a constable who had received a claim for collection, “ had, before suit brought, tendered back the paper and had it ready at the trial to be handed over and the debtor was still good, the measure of damages was not the amount of the debt, but nominal damages only.” And in this opinion, as declaratory of the rule applicable to the case under consideration, we see no error.— The engagement of the defendant, was, that Skinner should diligently endeavor to collect all claims put into his hands for collection, and faithfully pay over all sums by him re-*567eeivod, to the persons to whom they might be due. The engagement was broken by his failure to use reasonable dili. gence in collecting, and, for this breach, the plaintiff was entitled to recover damages commensurate with the injury sustained. From every breach of a contract, the law infers that some injury has been sustained, but if the contract itself does not furnish a measure for the injury,- and there is no proof of actual injury, it can infer no more than what is termed, “ nominal damages ” It cannot be that any negligence of the agent, however slight, and unattended with actual loss to his principal, should make him responsible to the full amount of the debt put into his hands for collection.— This would be to indict a wrong on the agent, for it would be to take from him, and put into the pocket of the principal, what the former does not in conscience owe, and the latter is not in conscience entitled to receive. Sometimes, indeed, on the ground of public policy, it is prescribed by positive law, that certain acts of misfeazance or omission on the part of a public officer, with respect in.the collection of a debt, shall make him liable to the whole amount thereof as in the case of escape of a debtor, who has been in custody under a lawful execution. But, wherever there is no positive enactment on the subject, the rule of law is the rule of reason, that he who injures another shall compensate to the extent of that injury. This principle was distinctly asserted in the ease'of *Russel*v Palmer, 2d Wilson, 325, where, in an action by a creditor against his attorney, who after judgment against the' debtor had' neglected to charge liim in execution when surrendered by his bail, whereby the debtor was superseded and discharged out of custody, the jury, under the directions of the Chief Justice, had rendered a verdict for the entire debt, but the court ordered a new trial because of this misdirection'. And so it was held in this court, in an action brought on the sheriff’s bond, for a breach thereof in permitting a defendant to escape, that the extent of the injury sustained by the plaintiff, and not the amount of the debt due to him, was the true measure of his damages. *Governor*v Matlock. 1 Hawks, 425 We do *568not understand his Honor as saying, that it was not cümpe-tent tbe plaintiff to take his case out of the rule by shevv-ing, that, although the *debtor*remained good, the *debt*had been lost by the constable’s neglect, because it was-barred by time, or the proof thereof by the party’s oath was no longer admissible, or the testimony of witnesses necessary to establish it was lost, or in any other manner. Nor do we understand him as saying, that it was not competent for the plaintiff to shew any partial damage, less than the loss of the debt consequent upon the delay, as that the debtor had removed to a distance, or that the plaintiff was subjected to any extra expense or inconvenience in the collection of the debt. But simply, that where the debt is not lost by the constable’s neglect, the plaintiff is not entitled, by reason of that negligence, to receive the amount of the debt, and when he does not shew any actual injury thereby sustained, he is entitled only to the damages which the law infers without proof — nominal damages.

It will never do in matters of contract to leave the question of damages to the *arbitrary*discretion *of*a jury.— There must be a rule whereby to assess them, although the application of that rule is with great propriety confided to the jury. And we know of no other that can legally be1 laid down, where there is no statutory provision on the subject, and the parties have not described any by the terms or nature of their contract, than that the person injured should be re-imbursed what he has lost, and if no loss be shewn by parol, should be re-imbursed to the extent of the loss which the law presumes. It may be, that the same policy which' has induced the Legislature from time to time to secure, by amercements and other penal enactments, diligence and fidelity on the part of sheriffs in the execution of their official duties, may indicate a necessity for similar provisions, in regard to officers intrusted with the collection of claims under the jurisdiction of a single magistrate. Inconsequence of that jurisdiction having been so greatly extended, a large portion of the property of our citizens is now in the hands of these officers, and the community has a deep interest;, *569that while they are not held to a ruinous responsibility, they may be made to know and* feel that honesty and diligence are not only their bounden duties, but their best interest; and that such a measure of accountability may be established, as will ensure to' every one injured by them, full redress for losses probably sustained, although not susceptible of proof. But these considerations are not for the eourt which tried the cause, nor are they for us. The constitution has provided another department of the government, to whom they may properly be addressed, and with whom they will no doubt have the weight, to which they are entitled.

Per Curiam-. Judgment affirmed.-