CHAPTER XVII. THE MEASURE OF DAMAGES IN ACTIONS AGAINST OFFICERS. § 543. Ministerial officers responsible | § 556. Failure to return. for violations of duty. 544. Actual injury furnishes the general rule. 545. General rule. 546. Burden of proof. 547. Nominal damages. 550. Failure to attach. 551. Failure to arrest. 552. Escape. ernment. 557. False return. 558. Miscellaneous breaches of duty. 560. County clerk. 562. Town officers. 563. Collector of customs. 564. Trespass by officer. 565. Wrongful attachment. 566. Suits between different offi cers. 567. Receiptors. 568. Property sold illegally. 569. Exclusion from office. 543. Ministerial officers responsible for violations of duty.-* We shall now consider that class of cases which arise out of the acts of the public officers who are charged with the ministerial portion of the administration of govIt is well settled under the English system, that sheriffs and other ministerial officers in case of neglect or violation of duty, are responsible to the party aggrieved in a civil action.(") The mode prescribed is usually one of the great class of actions on the case; but the proceeding often takes the form of trespass. To (*) Clark v. Miller, 47 Barb. 38; 54 N. Y. 528. Public officers, however, vested by law with discretionary authority, and acting within its scope, are not answerable in damages for the consequences of their acts, unless done maliciously and with intent to injure. Burton v. Fulton, 49 Pa. 151. this general remedy, which flows from the principles of the common law, is frequently superadded some special statutory relief, enforced by some particular penalty; but the addition of such particular remedy does not interfere in any way with the right of the party to his compensation for the actual injury done in a suit of trespass, or on the case.1 ** Every public officer is required to give bonds with sureties for the proper discharge of his duties, and in some jurisdictions an action against an officer for wrongful acts in the discharge of his duties may be brought upon his bond, and often is so brought. It is evident that the measure of damages should in general be the same, whether the injured party brings an action of tort or resorts to the bond, the real cause of action being a tort in either case; and therefore actions brought upon official bonds are frequently authorities upon the subjects discussed in this chapter, and many such actions will be found herein. The peculiar questions which arise by reason of the action being brought upon the bond will be discussed later.(*) *The 8544. Actual injury furnishes the general rule.ordinary cases in which the questions arise which we are now about to examine, are presented in suits against sheriffs or other ministerial officers, either for negligence, as the escape of parties arrested on mesne or final process, for taking insufficient security, for neglect to seize or preserve property on execution, or omission to make a As a general principle, it is well settled, in regard to all public officers, that although created by statute, and although liable to the infliction of penalties for violation of official duty, they are still equally responsible to the aggrieved party, in an action on the case. "Where the law," says the Supreme Court of Maine, "has affixed forfeitures for certain infractions thereof, or for neglects in not conforming to its requirements, whereby individuals are injured, they are not in consequence thereof deprived of the remedy which would exist if no penalties were prescribed." Hayes v. Porter, 22 Me. 371, 376; Beckford v. Hood, 7 T. R. 620; Farmers' Turnpike v. Coventry, 10 Johns. 389. (") See chapter on Bonds. § 544. ACTUAL INJURY FURNISHES the generaL RULE. 155 true return to the writ; or, on the other hand, for an excess of their powers, as for levying upon property which they are not authorized to do so by the process, excessive distress, etc. And in these cases we shall find the general principle to be, although the form of the action be in tort, that the party aggrieved is entitled, independent of any statutory relief, to recover only to the extent of his actual injury. It is not correct, however, says the Supreme Court of Vermont, to hold "that in actions of trespass for taking personal property, when the defendant is an officer acting under legal process, no damages can in any case be recovered beyond the actual value of the property. Courts usually in such cases instruct the jury that they ought to confine themselves within those limits. It is a rule of practice merely. Circumstances may require a departure from it."1 (*) The rule is, indeed, subject to many modifications; partly arising from the vagueness that we have often had occasion to notice in the early cases;' partly from the Joyal v. Barney, 20 Vt. 154, 159. Ravenscroft v. Eyles, Warden of the Fleet, 2 Wils. 294 (1766), is very strong to show the power which the courts originally gave in these cases to the jury. It was case for a voluntary escape; and the question being whether the action lay, the debtor having returned to custody before suit brought, and judgment having been recovered against him, Lord C. J. Wilmot said: "The quantum of damages is nothing to the purpose; for if the jury had power in this case to give damages, we must now take it that they have done right; and I am of opinion that the jury were not confined to give the exact damages in the final judgment, but had a power and discretion to assess what damages they thought proper; for this being an action upon the case, the damages were totally uncertain and at large. In Sayer on Damages, 56, this case is stated to have been tried before Lord Camden, C. J.; that it was proved at the trial that the debt was sperate; and that on the argument, Bathurst, J., said: "Whether the debt was sperate or not, I take it to be a settled point, if the escape is a voluntary one, that it is the duty of the jury to assess damages to the amount of the whole debt." But by the report in 2 Wilson, above cited, no such point was made before the court on the subject of damages. In Kent v. Kelway, case for rescue from arrest (Lane, 70: Sayer on Damages, 55), it is said that damages may be recovered to the amount of the debt for which the arrest was. (*) Acc. Dobbs v. The Justices, etc., 17 Ga. 624. variety of the forms of action employed; and partly from the application of the rules of evidence; and partly from the general principle that in actions of tort the intent, disposition, and conduct of the defendant always bear largely on the question of damages. And these various questions we shall better understand by an examination of the cases. ** $545. General rule.-* As a general rule, however, it is settled that the measure of damages in suits of this class, brought against a public officer by a creditor plaintiff, whose remedy against his debtor has been impaired by the neglect or other misconduct of the officer, is the actual injury sustained, this actual injury being measured by the amount of the original debt due the plaintiff, or the value of the property, which has been lost or prejudiced by the neglect of the officer,** unless it is shown that the plaintiff's actual loss was less.(^) 8546. Burden of proof.—* It is an important question, where the breach of duty is clear, on whom does the proof of damage rest? Is the plaintiff to prove that he is damnified, or is the officer to disprove the fact? Our law, proceeding on a principle of evidence, throws the burden of proof on the negligent party, and assumes that In Bayley v. Bates, 8 Johns. 185, the Supreme Court of New York said: "An action for a false return sounds in tort and fraud, and it draws into consideration, in a greater or less degree, the quo animo of the defendant.” (*) Marcum v. Burgess, 67 Ala. 556; Phelps v. Owens, 11 Cal. 22; Pelberg v. Gorham, 23 Cal. 349; Spain v. Clements, 63 Ga. 786; French v. Snyder, 30 Ill. 339; Plummer v. Harbut, 5 Ia. 308; Crane v. Stone, 15 Kas. 94; Commonwealth v. Lightfoot, 7 B. Mon. 298; Marshall v. Simpson, 13 La. Ann. 437 ; Bogel v. Bell, 15 La. Ann. 163; Whitaker v. Sumner, 9 Pick. 308; State v. Cobb, 64 Mo. 586; Randall v. Greenhood, 3 Mont. 506; Goodrich v. Foster, 20 N. H. 177; Clark v. Miller, 54 N. Y. 528; Hamner v. Griffith, I Grant 193; Hogan v. Kellum, 13 Tex. 396; Briggs v. Gleason, 29 Vt. 78; Blodgett v. Brattleboro, 30 Vt. 579; Parker v. Peabody, 56 Vt. 221; Beveridge & Welch, 7 Wis. 465. § 546. BURDEN OF PROOF. 157 It the plaintiff is injured until the contrary appear. might be urged that this should not be so, where there is mere ordinary negligence unaccompanied by any criminal intention; but as with common carriers, so with public officers, there are reasons, of controlling weight, why the party to whom a great trust is confided, and in whose hands usually all the testimony must be, should be compelled to exculpate himself after a prima facie case of negligence is made out against him.(*) There appears, however, to be a discrepancy on this point between the English and American rule. In England, it would seem, though it is by no means clear, that the plaintiff must show affirmatively that he could have collected his debt but for the negligence of the defend ant. The earliest case on this subject' runs thus: "An ac tion upon the case against a sheriff, upon an escape suffered by his bailee upon a mesne process, and it was in evidence, as is necessary to make this case, that there was such a debt, that such a process and warrant was, and a due debt, and lastly, that the party arrested was become insolvent; otherwise he should not have recovered damages to the value of his debt, as he here did upon all this proved in evidence as aforesaid." On the authority of this case, Mr. Peake' lays down the rule thus: "In order to show the amount of damages he has sustained, the plaintiff should also prove the circumstances of the defendant at the time of the arrest, and that he has since absconded, or become insolvent ; for if the defendant were originally in bad circumstances, or he may be met with every day, and the plaintiff has 1 Tempest v. Linley, Clayton, 34. • Norris' Peake, 608. (*) Sheldon v. Upham, 14 R. I. 493. |