Opinion
05-13-1801
Russell v. Clayton
This was an action on the case brought by Clayton against Russell, Clerk of the Williamsburg District Court, for a mistake in issuing a writ of scire facias; and the jury found a special verdict, which stated: That the plaintiff on the 7th of May, 1790, obtained a judgment in the District Court against Thomas Hubbard, administrator, with the will annexed of James Hubbard, for 3131. and one penny damages, to be discharged by the payment of 1561. 10s. with 5 per cent. interest from the 19th of July, 1773, and the costs, to wit: 3s. 6d. 170 lbs. tobacco and 186 lbs. tobacco. That on the 13th of November, 1792, the plaintiff sued out a writ of scire facias to revive the judgment against the said Thomas Hubbard, administrator as aforesaid. That the said writ of scire facias was made out by the said Russell, who by mistake, inserted that the judgment was to be discharged by the payment of 561. 10s. with interest from the 19th July, 1773, and costs, instead of 1561. 10s. with interest from the 19th July, 1773, as it ought to have been. That the said writ was returned executed. That the plaintiff appeared by his counsel and judgment was rendered for the said 3131. to be discharged by the payment of 561. 10s. and the costs. That an execution issued on the latter judgment, which was replevied. That the plaintiff never made any attempt to have the error amended. That there was no other evidence in the cause except the facts above stated.
The District Court gave judgment for the plaintiff; and Russell appealed to this Court.
Affirmed judgment.
Counsel for the appellant.
The writ appears to have been delivered to the plaintiff; who ought to have inspected the sum, and seen that it was right. He might have corrected the mistake, by discontinuing his writ, and bringing a new one, or by suing out a writ of error to the judgment, or even by moving to amend the proceedings without the form of a writ of error; Gordon v. Frazier, 2 Wash. (VA) 130; but, having neglected to do so. he ought not to be allowed to charge the Clerk for an accidental mistake. Besides, it is found that there was no other evidence than that stated in the verdict; and as special damage is the gist of the action, and none is shewn, it follows that the suit was not maintainable. 1 Ventr. 310; [Russell v. Palmer,] 2 Wils. 325; [Pitt v. Yalden,] 4 Burr. 2060.
Counsel for the appellee.
Whoever takes a beneficial office, takes it subject to all its inconveniences, and is bound for the regular and proper transactions of all duties belonging to it: Therefore, any improper act, whether proceeding from mistake, negligence, or design, equally renders him liable to the party injured by it. Of course, it being the duty of the Clerk to issue the writ rightly, if he has done it wrong, he is responsible. Besides, the plaintiff was not bound to correct the error, and perhaps it was prudent in him not to do so: because, that might have released the Clerk, and before he could have obtained another judgment against the executor, the estate might have become insolvent.
The damage done the plaintiff necessarily appears on the proceedings. It is the difference between the true sum and that for which the writ erroneously issued. If this error had not been committed, it is probable that the plaintiff might have made his whole debt; because, it appears that the sum for which the judgment was obtained in the scire facias, was actually made; and, therefore, the presumption is, that the whole might have been.
Cur. adv. vult.
OPINION
PER CUR.
Affirm the judgment.