Marcum v. Burgess

STONE, J. — The statutory damages of twenty per cent, on the judgment for not returning an execution according to the mandate thereof, can be recovered of a sheriff only in a summary proceeding under the statute. — Code of 1876, section 3357; Governor v. Powell, 10 Ala. 544. In a common law action on the bond for not returning such process, the statutory damages, as such, can not be recovered. The violation of duty by the sheriff, in not returning the execution, is a breach of the official bond, which entitles the plaintiff to recover ; but in the absence of averment and proof of actual injury, there can be only nominal damages. — Bagley v. Harris, 9 Ala. 173; Evans v. Governor, 18 Ala. 659. The Circuit Court, however, erred in sustaining the demurrer to the complaint. It is sufficient for the recovery of nominal damages. Reversed and remanded.