121 Ga. 287 | Ga. | 1904
This was an action on a sheriff’s bond. The breach alleged is his failure to levy and return an attachment. No special damages are set forth; and the question raised is whether there is a presumption that the plaintiff has been injured to an amount equal to the debt named in the writ of attachment, or, if not, whether it may maintain a suit for the recovery of nominal damages. At the outset it must be conceded that the authorities in England, the United States, and' Georgia are in much conflict. See 2 Sutherland on Damages (3d ed.), -§§489-492; Crawford v. Word, 7 Ga. 445; Hunter v. Phillips, 56 Ga. 636 ; Hackett v. Green, 32 Ga. 512. In this State the question has usually been presented on rules against the officer; or on exceptions relating to the admission of evidence, or to a charge as to the measure of damages. Taylor v. Johnson, 17 Ga. 522 ; Wilkin v. American Freehold Co., 106 Ga. 183; Cowart v. Dunbar, 56 Ga. 417; Dobbs v. Justices, 17 Ga. 625; Neal v. Price, 11 Ga. 297. In none except Colquitt v. Ivey, 62 Ga. 168, was the sufficiency of the pleadings involved-; and even that did not in terms pass upon the exact question now presented. However, in spite of the conflict and the want of a direct authority, all of -.the later cases now point one way.
Of course the court, for its own protection and that of the public, may proceed against the officer by attachment for contempt, -fine, or other appropriate proceedings. But with that a plaintiff has nothing'to do. He does not stand either as the director indirect guardian of the public, nor is it for him ás an individual to enforce the performance of the statutory duty. On petition for rule or mandamus a citizen may compel the performance of any duty in which he has an interest. But when he sues the sheriff-for money, he must show-that he has suffered a money loss. He
We do not mean to hold that in every case the original claim must be sued to judgment and a return of nulla bona be made. The law will not compel the plaintiff to do an impossible or useless thing. Proper allegations and proof may supply the need for such allegations. W. U. Tel. Co. v. Bailey, 115 Ga. 725 (3); Colquitt v. Ivey, 62 Ga. 169; Collins v. McDaniel, 66 Ga. 203; Swan v. Bridgeport, 70 Conn. 143.
Judgment affirmed.