Barnes v. Farmer. would be such as affords a fair presumption of the re quired fact. It is that proviso, which raises the question of the competency of the circumstantial evidence in any case; for it is a question of just reasoning, what inferences may be made from an admitted or established fact. Therefore, if the fact sought cannot be rationally deduced from the circumstances relied on, the circumstance itself ought not to go to the jury, because its consideration cannot serve the justice between the parties, but may mislead the jury. Suppose, in this case, the declaration to have been only for the harboring from September 15th, 1843, so as to make the statute of limitations altogether inapplicable-which, indeed, is the state of the case under the opinion given on that point to the jury; the question then would be a naked one, whether the harboring laid would or could be established by the previous harboring. It is often a delicate point to determine what may or may not be justly inferred from particular premises; and persons will frequently differ upon it When I see that a learned Judge thought, that a harboring up to the time of the action might be presume 1, and that twelve gentlemen were able to affirm on their oaths its actual existence, because it had been practised for several years before and down to 1842, I cannot but be somewhat diffident of my own conclusions to the contrary, and reluctant to disturb the verdict on that ground. But, as the law does not allow a question to be submitted to a jury without evidence, which means also, with such evidence as, taken in the whole, will not fairly authorise a verdict in favor of the party offering the proof-in other words, evidence, on which a Judge must say, he could not find a verdict-it seems to be the imperative duty of the Court here to reverse the judgment, when a case in that situation has been left to the jury. Now, it seems to me, notwithstanding the previous connection between the slave and the defendants, that one cannot justly and with any rea Barnes v. Farmer. sonable confidence affirm, that the connection continues for four years after the last visible trace of its existence. And after the expiration of that period it may be fairly contended, I think, that, if the harboring did not continue duing the whole period, it did not exist at all within it. For, it is a much stronger presumption now, that it did not exist, for instance, in 1843, than it was in that year, because, then it might be said, there were not opportunities, and that time had not been allowed to discover direct proof. But. now, the negro has been taken and could point out the means of establishing the fact, if it had occurred, and there has been full scope for enquiry in other quarters for nearly six years, in all, since the latest day to which the direct proof brought down the harboring; and the whole period affords not the slightest vestige of a harboring or correspondence of any kind after the autumn of 1842. If it appeared, that the caves and other places of secret resort, once used by the runaway, had been still in use by some one, or that this ne gro had been seen in the neighborhood of the defendants, although personal intercourse might not be directly shown, there would be something for the mind to act on, and, possibly, the case might have been fit for a jury's deliberation. But, with nothing further than the naked facts, that ten years before the negro had belonged to the defendants, and that four years before they had entertained and concealed him, the case is too bare of proof to go to the jury. There is nothing within the time; and the previous circumstances, thus solitary and antiquated, afford a presumption too remote and inconclusive to be the ground of judicial determination. I concur in holding, that the judgment must be reversed and a venire de novo awarded. PER CURIAM. Judgment reversed and venire de novo. STATE TO THE USE OF HENRY G. PARISII vs. ELLISON G. MANGUM. In an action against a constable for a breach of his official bond, in not collecting a debt, the relator is entitled to recover at least nominal damages, when he shows neglect and unreasonable delay in the collection, although the plaintiff may have received the amount of his debt from the constable after the commencement of the action. Appeal from the Superior Court of Law of Orange County, at the Spring Term, 1848, his Honor Judge PEARSON presiding. Debt on a constable's bond. The breach, assigned in the declaration, was want of diligence in the collection of a judgment. On the 3rd of March, 1842, the plaintiff put into the hands of the defendant, a judgment rendered by a magistrate against Thomas D. Crane. The execu tion was taken out by the defendant on the 16th of the same month, but he proceeded no farther on it, until the month of June succeeding, when he levied on the land of the defendant in the execution. At the time the execution issued, Crane had personal property abundantly suf ficient to dircharge it, which was known to the defendant -Crane died on the 17th of April, and on the day suc. ceeding, the sheriff levied on his personal property to satisfy other executions, and sold it, and applied the money raised to satisfy them. The constable's execution, with the other papers, with the levy made by him, was duly returned to the County Court; and after a lenghtened litigation and much delay, the land levied on was sold under a venditioni exponas, and the plaintiff received the amount of his debt from the constable, the defendant, in 1846. At the same time he protested against receiving Parish v. Maugum. it in satisfaction of his cause of action in this suit, which was then pending in Orange County Court. The defendant's counsel moved the Court to charge the jury, that the evidence, if true, did not show a breach of the defendant's bond, as the plaintiff had got his money. This was refused, and the jury was charged, that, if the evidence was true, a breach of the bond, in not using proper diligence on the part of the officer, was shown, which gave the plaintiff a good cause of action against him, and that the receipt of the money afterwards could only have the effect of mitigating the damages to a nominal sum. Verdict for the plaintiff to that effect, and appeal by the defendant to the Supreme Court. Norwood, for the plaintiff. McRae, for the defendant. NASI. J. We concur with the presiding Judge in his charge. The instruction required could not be given. The official bond of the defendant was broken, although the money was received by the plaintiff, subsequently to the bringing of this action in the manner and under the circumstances set forth in the case. The law requires that all process shall be served by the officer, into whose hands it may come, with all convenient speed, and in the manner prescribed. By the act of 1794, Rev. Stat. ch. 62, s. 16, it is directed that the officer, to whom a Justice's execution is directed, must levy upon the goods and chattels of the defendant, or for want of them on his lands and tenements. The primary fund for the payment of debts, by the law, is the personal property of the defend ant. Nor can a constable, without a gross violation of his duty, pass that by and levy on the land; the latter is not to be touched by him until he can on his oath say, that no goods and chattels of the defendant could be Parish v. Mangum. found by him. It is his duty to go to the residence of the debtor, and seek for personal property. At the time the defendant took out the execution, Crane had personal property, much more than was sufficient to discharge it and this was within the knowledge of the officer. Why he did not seize it, he does not explain. In consequence of the levy he did make, the plaintiff was thrown into a tedious, prolonged contest in Court, and, instead of the speedy remedy provided for him by the law, was compelled to pursue the one, which the unreasonable conduct of the officer had rendered necessary. After a litigation of near four years, he received his money, which he might have done in ten days after the 17th of April, if the law had been obeyed. For the delay in the collection of the money, the plaintiff was not entitled to any damages; the interest which accrued is considered sufficient for them, but for his additional expenses in prosecuting his suit in Court, over and above those which were taxed against the defendant, he would be entitled to compensation. He, however, has proved nothing paid by him, and, therefore, is entitled to nothing for them. The reception of the money by the plaintiff did not defeat his action, for it was received under an express exception by the plaintiff, that it should not have such ef fect, and a tacit assent thereto by the defendant. But the plaintiff is entitled to the damages the law implies in every breach of official duty, which in this case is but nominal. RUFFIN, C. J. When this suit was brought, the contest was no doubt a real one, whether the defendant was liable for the relator's debt; as he would unquestionably have been, if the money had not been made from the land. It is not material to consider, whether that recovery could be given in evidence under the plea of condi. tions performed, inasmuch as the relator admitted satis |