An act of the legislature, passed in 1853 (Sess. Laws, p. 265), provides that the county clerk shall have a sufficient number of competent searchers in hisoffice; shall cause searches, when ordered, to be made without delay; shah certify to the correctness of his searches, and shah be held legahy liable for ah damages resulting from errors, inaccuracies or mistakes, in his return. The plaintiff insists that this statute casts upon the defendant a legal liability for the loss sustained by the estate of his testatrix. . If that loss is the direct consequence of the omission of the defendant to return the judgment against Moses Le Boy, in favor of Smith, the position of the plaintiff is sound. It is impossible, however, to hold such a conclusion. Mrs. Le Boy took no action in consequence of the omission of the clerk’s return to the search. She bought no property, and parted with nothing of value by reason of the erroneous return. The insurance company might have been subjected to damage by the loss of the security upon which they were induced to part with their money, relying upon the accuracy of the defendant’s return. But that is not the case of Mrs. Le Boy. Her loss occurred from the non-payment of the judgment, and not from the error in the clerk’s return. She obtained the loan for which she applied, and nothing was abated from it on account of this incumbrance. It was no injury, of which she can complain, to have the money paid to herself on effecting the loan, instead of having some part of it applied to the satisfaction of an outstanding judgment.
However probable it maybe that the judgment would have been paid off by the insurance company out of the proceeds of the loan if it had been returned upon the search, it is impossible to declare at this time that it would have certainly been so applied. Her object in causing the search to be made, was not defeated by the omission to return the judgment. She did not seek information about her title for any purpose but that of obtaining the loan. It is no ground of complaint that she was not awakened by the return to take action for the removal of this judgment, The knowledge which she would have derived from the . return of it, *251would have been mere incidental; and it is uncertain whether the return, or the knowledge thereby acquired, would have been applied by Mrs. Le Boy to any purpose whatever. No one can say what actually would have been done under a different state of facts from those which actually occurred. It is no answer to say that she could, or that she might have paid the judgment or prevented a sale; it does not make it certain that it would have been done. The payment was not a ne'cessary consequence of a correct return by the clerk, and without such a direct and necessary result to flow from Ms act or omission, the defendant cannot be made chargeable with damages.
The rule as to damages, under this statute, is not different from that prescribed by the common law. When the damages are uncertain, indefiMte, and incapable of being fixed, as the result of an act, negligence or omission, none can be imposed. Had a different rule been contemplated by the legislature, it would have been necessary to have imposed a fixed penalty; but the statute leaves it open for such damages as flow from the error, inaccuracy or mistake of the clerk, and can be ascertained to have been actually sustained.
The order appealed from should be affirmed, with costs, and the judgment be made absolute against the plaintiff.
All the judges concurring.
Judgment accordingly.