after stating the facts: In our judgment, the relator was entitled to only nominal damages upon the verdict. It seems that the Court intended to apply the statutory provision (The Code, §1888) which provides that “when a claim shall be placed in the hands of any Sheriff, Coroner or Constable for collection, and he shall not use due diligence in collecting the same, he shall be liable for the full amount of the claim, notwithstanding the debtor may have been at all times, and is then, able to pay the .amount thereof.” But it will be observed that this applies ■only to claims placed in the hands of the Sheriff or other ■officer for collection — such claims as are within the jurisdiction of a Justice of the Peace, and may be collected by judg *419 ment and process of execution granted by that magistrate. It does not apply to executions issuing from the Superior or other Courts of record. . The reason for the distinction is clearly and certainly pointed out in McLaurin v. Buchanan, Winst., 91. The statute, in effect, now is just as it was when that decision was made, and we are not at liberty, nor in the least inclined, to disturb it.

The evidence was conflicting as to whether the defendant (in the execution placed in the hands of the Sheriff, and which he failed to collect) had property leviable sufficient to satisfy that execution, and continued to have the same after the execution was, or ought to have been, returned. It may be that he had, and has, such property, and that the debt may yet be collectible by execution. The contrary does not appear by the verdict. That the Sheriff negligently failed to collect the execution, does not imply that the defendant did not have property leviable sufficient to satisfy it while the Sheriff had it, or that he then had the same, and the Sheriff negligently allowed him to rid himself of it, whereby the relator lost his debt, or part thereof. To entitle the relator to substantial damages, the jury should have found by their verdict, in effect, that he, by reason of the negligence of the Sheriff, could not collect, or had lost his debt, or part of it. State v. Skinner, 3 Ired., 564; McLaurin v. Buchanan, supra; Buckley v. Hampton, 1 Ired. 318.

The Court should, in this case, have submitted to the jury, in place of the second issue submitted, the question whether any substantial damages had been sustained by the relator, an'd required them, under proper instruction, to respond to the same.

As we have said, the relator was only entitled to nominal damages upon the verdict rendered. There is, therefore, error. The judgment must be modified, allowing the relator nominal damages only; or, if he shall so elect, the Court may submit to another jury the issue we have suggested *420 above, giving them appropriate instructions as to the measure of damages. There was no exception to the instructions the Court gave the jury. The presumption is that they were correct, and satisfactory to the parties. The question of negligence is settled by the verdict rendered, and the only remaining inquiry is as to the amount of substantial damages the relator has sustained. He may, or may not, require that to be made.

Let this opinion be certified to the Superior Court, to the end that further steps may be taken in the action according to law.

Reversed.