Woods v. Varnum

delivered the opinion of the Court. Upon this report the question arises, whether the evidence which the judge admitted should have been rejected. It is not suggested that, if the evidence were competent, the verdict was too small.

It is not intended, in the opinion now given, to exonerate the sheriff or any public officer from an exact performance of his duty. The public has a right to require it, and individuals who sustain injury from their neglect of duty, may have a remedy adequate to the measure of damage which has been received. Thus, suppose the debtor had abundance of property in his personal control, which could not be come at to be attached, and that the only remedy of the creditor, was against the person of the debtor. In such a case it might happen that a debtor, under the pressure of imprisonment, would pay his debt when but for that inconvenience he would set justice and tiis creditor at defiance. Nobody would say in such a case, that a creditor who was deprived of an opportunity of showing *168the facts above stated, would not be entitled to a substantial compensation,for such neglect. If the damage has been occasioned however by the fault or fraud of the creditor, the fact, upon plain principles of law and justice, should be taken into consideration by the jury. And if afte~ a fair consideration of th< whole case the party complaining has not in truth and m fact received a substantial damage, it would be the duty of the jury to give only nominal damage for the breach of duty on the part of the officer.

The principles upon which this case should be decided were recognised in this Court many years ago, in the case of Weld v. Bartlett, 10 Mass. R. 473. That was a complaint against the sheriff for a false return. He returned that he had taken bail, but in fact he had not done so. He was permitted to show that the debtor was extremely sick and poor, and that after the judgment was obtained the debtor might have been taken on execution and committed to gaol if the plaintiff had pleased, but that if he had been committed to prison, he would on account of his extreme poverty have been entitled to take, and would have been discharged upon taking, the poor prisoner’s oath.

That case is much more favorable for a claim of substantial damage than the case now under consideration. For if bail had been taken in that case, it might have happened that the bail would have been charged by some matter or reason, intentional or accidental, on the part of the principal. But in the case at bar the debtor, for a sum exceedingly small, was actually imprisoned on the execution. The whole amount of the execution, including the fees of the officer, did not amount to $20. And in fact the debtor actually did take the oath required to be taken by poor prisoners and he was discharged. The damage is said to be the loss of a remedy of imprisonment against the person of the debtor ; and it seems to us too clear for argument, that it was merely nominal.

The instruction was correct, and the only mistake which has been made, if any, was that the jury gave $3, instead of damages strictly nominal.

It cannot be believed, we think, that the plaintiff did not. understand that the officer had made a mistake in his cop), *169inserting forenoon instead of afternoon. He could not, as it seems to us, really believe that the time appointed for the examination for admitting the debtor to his oath, was at the hour after midnight, and the jury might well have come to the conclusion that the night journey from Groton to Concord to attend to that examination, was not made in good faith, but was in truth a part of the contrivance to charge the officer for a mere inadvertence. If the jury had taken that view, they might well have disallowed the charge of $3, which the plaintiff paid to a man to carry him to Concord on that occasion. But the defendant makes no objection to the verdict, and for the reasons before stated, we think that the plaintiff has no legal reason to do so.

Let the judgment be rendered upon the verdict for three dollars damages, and one quarter part of that sum for costs.